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Addresses  of  U.  M.  Rose 


WITH 

H  Brief  fDemoir 

BY 

GEORGE  B.  ROSE 


CHICAGO 
GEORGE  I.  JONES 

1914 


Copyright,  1914 

by 

GEORGE  I.  JONES 


UNIVERSITY  OF  SOUTHERN  CALIFORNIA  LIBRAR1 


AC 


I 


122 


c^/ 


CONTENTS 

PAGE 

Memoir 7 

The  Rise  op  Constitutional  Law        ...        35 

A  Paper  Read  Before  the  Pennsylvania  State  Bar 
Association  at  its  Annual  Meeting,  June  25,  1901. 

Concerning  Law  Reform — Coke  and  Bacon        .     71 

Address  delivered  before  the  State  Bar  Association  of 
Virginia,  at  Old  Point  Comfort,  on  the  evening  of 
July  16,  1896. 

"The  President  op  the  United  States"      .       .       113 

Response  to  this  Toast  on  the  occasion  of  President 
Roosevelt's  Visit  to  Little  Rock,  October  5,  1905. 

Immunity  From  Capture  of  Private  Property  at 

Sea  in  Time  of  War 119 

Address  at  the  Second  Hague  Conference,  July  5,  1907. 

Abraham  Lincoln 133 

Address  on  the  One  Hundredth  Anniversary  of  Presi- 
dent Lincoln's  Birth,  Delivered  in  New  York  City. 

Jefferson  Davis 169 

Memorial  Address  on  the  Life,  Character  and  Public 
Services  of  Jefferson  Davis,  Delivered  at  the  Hall  of 
the  House  of  Representatives,  Little  Rock,  Wednes- 
day evening,  December  13,  1889. 

Confederate  Dead 193 

Memorial  Address  at  the  Annual  Ceremonies  of  the 
Confederate  Memorial  Day. 

Judge  Joseph  W.  Martin 231 

Extract  from  an  Address  Delivered  on  Presenting  to 
the  Supreme  Court  of  Arkansas  the  Resolutions  on 
the  Death  of  Judge  Joseph  W.  Martin. 


Contents 

PAGE 

John  Marshall 239 

Address  on  John  Marshall  Day — The  One  Hundredth 
Anniversary  of  his  Appointment  as  Chief  Justice  of 
the  United  States  Supreme  Court. 

"Changes  in  the  Law  and  its  Practice  in  the 
Half  Century  op  My  Observation  "  .       .  259 

Address  Delivered  Before  the  St.  Louis  Law  School 
Alumni  Association  at  a  Banquet  Given  in  His  Honor, 
January  9,  1902. 

Trial  by  Jury  in  France 277 

Address  Before  the  Missouri  Bar  Association,  May 
4,  1900. 

To  a  Graduating  Law  School  Class      .       .       .  319 

Address  Delivered  to  Graduating  Class  of  the  Law 
Department  of  the  University  of  Arkansas,  at  Com- 
mencement, Little  Rock,  Ark.,  June  1,  1894. 

To  a  Graduating  Class    .       .       .       .       .       .       343 

Address  Delivered  at  the  University  of  Arkansas, 
Fayetteville,  Ark. 

Strikes  and  Trusts 365 

A  Paper  Read  at  the  Sixteenth  Annual  Meeting  of  the 
American  Bar  Association  August  13,  1893. 

Translations 405 

Zueignung   (Introduction  to  Faust)   Goethe. 

"The  Broken  Vase" — From  the  French  of  Sully  Prud- 

homme. 
"Kennst  du  das  Bild  auf  zartem  Grunde"   (The  Eye) 
— Schiller. 

Eine  Leichenphantasie    (A   Funeral   Dirge) — Schiller. 
Abschied. 


JUDGE   U.  M.  ROSE 


JUDGE    U.  M.  ROSE 

Requested  to  write  an  account  of  his  ancestry 
and  youth,  Judge  Rose  wrote  the  following: 

* '  My  father  was  Dr.  Joseph  Rose,  son  of  Charles 
Rose.  Joseph  Rose  was  born  near  Petersburg, 
Va.  While  he  was  a  child  the  family  removed  to 
Western  Pennsylvania,  where  Charles  Rose  pur- 
chased a  farm.  His  son,  Joseph  Rose,  received  a 
fairly  good  education  in  the  local  schools,  and  on 
his  approach  to  manhood  he  was  sent  to  Phila- 
delphia, where  he  entered  upon  the  study  of 
medicine.  Having  completed  his  studies,  he 
located  in  Pittsburgh.  His  father,  Charles  Rose, 
dying  about  that  time,  left  him  a  small  estate, 
which  led  him  into  a  disastrous  enterprise  that 
burdened  his  whole  life.  He  and  a  few  of  his 
friends  started  a  manufactory  of  glass,  then  a 
new  industry  in  this  country,  at  Pittsburgh,  which 
was  then  but  a  small  town  in  comparison  with 
what  it  now  is.  The  venture  was  signally  unfor- 
tunate. In  a  few  years  the  firm  failed,  and  the 
partners  gave  their  joint  note  for  a  large  deficit. 

"My  earliest  recollections  are  painfully  con- 
nected with  that  terrible  debt,  the  skeleton  in  the 
family  closet.  Creditors  must  have  been  very 
indulgent  in  those  early  times.  Some  of  the 
partners  died,  and  others  were  never  able  to  pay 
anything,  so  that  the  burden  that  fell  on  my  father 
greatly  exceeded  anything  that  he  could  have 


8  Memoib 

expected.  By  some  arrangement  he  was  to  pay  a 
certain  sum  annually,  which  he  managed  always 
to  do,  though  frequently  with  great  difficulty.  I 
think  that  it  was  in  1847,  which  must  have  been  a 
quarter  of  a  century  after  the  debt  was  created, 
that  it  was  finally  extinguished,  and  the  note  or 
notes  were  sent  to  my  father.  I  never  heard  him 
complain  of  the  matter  or  blame  any  one  about  it. 

* '  My  father  married  a  Miss  Armstrong  in  Pitts- 
burgh, and  about  the  period  that  his  financial 
enterprise  was  on  hand  she  died,  leaving  him  with 
two  young  boys.  He  had  a  friend  named  Brad- 
ford, who  had  emigrated  to  Kentucky,  who, 
hearing  of  his  misfortunes,  wrote  to  him  and 
finally  induced  my  father  to  rejoin  him  there; 
which  he  did  in  1824. 

"In  a  year  or  so  he  married  my  mother,  Nancy 
Simpson,  who  was  much  younger  than  himself. 
She  turned  out  to  be  a  very  domestic  woman,  of 
delicate  constitution,  but  of  untiring  energy,  and  a 
most  affectionate  wife  and  mother. 

"My  father  then  bought  a  farm  of  300  or  400 
acres,  I  should  think,  on  which  was  an  old- 
fashioned  two-storied  brick  house,  built  on  a  hill, 
and  surrounded  by  a  grove  of  trees.  To  the  west 
was  a  cliff  overlooking  a  bright  and  beautiful 
river,  which  within  a  mile  formed  a  junction  with 
another  river  of  the  same  kind  and  of  nearly  equal 
size,  neither  of  them  being  navigable.  On  the 
farm  there  was  a  very  large  orchard,  judging  by 
the  standards  of  those  days.  The  house,  which 
had  no  architectural  pretensions,  built  by  some 
pioneer,  was  large  and  roomy  and  had  a  cellar, 


Memoib  9 

which  every  winter  was  filled  with  apples.  There 
my  parents  kept  an  open  house  for  many  years, 
exercising  that  kind  of  hospitality  which  was  not 
uncommon  then ;  but  which,  under  changed  condi- 
tions, has  become  almost  obsolete.  In  that  home 
I  was  born,  the  third  son  of  my  parents,  on  March 
5,  1834.  As  my  father  and  Bradford  owned  the 
land  between  the  two  rivers,  they  laid  off  a  town 
there  never  destined  to  be  important,  which,  when 
I  first  remember,  contained  300  or  400  inhabitants. 
According  to  the  fashion  of  the  times  it  was  called 
Bradfordsville.  My  father's  house  and  most  of 
the  hamlet  was  burned  during  the  Civil  war  in  a 
skirmish  between  Morgan's  Confederates  and 
some  Federal  troops.  My  father  had  a  notion  that 
education  should  begin  in  the  cradle.  He  had  a 
passion  for  teaching  his  children,  and  I  cannot 
remember  when  I  could  not  read.  At  five  years  I 
was  put  to  studying  Latin.  Not  being  satisfied 
with  the  village  school,  my  father  employed  a 
private  family  tutor,  James  Martin,  a  man  of 
fairly  good  classical  education,  from  the  north  of 
Ireland;  but  Scotch  rather  than  Irish,  a  bachelor 
of  fifty  years,  a  Presbyterian  of  the  strictest  type. 
I  think  that  this  excellent  man  was  well  fitted  for 
the  place.  He  remained  in  the  family  until  the 
summer  of  1847,  after  which  I  was  sent  to  an 
academic  school  in  the  country. 

"My  mother  died  at  the  age  of  43  in  September, 
1848,  and  my  father  died  in  the  following  April. 
Then  everything  seemed  to  come  to  an  end.  I  was 
fifteen  years  old.  The  estate  went  into  the  hands 
of  an  administrator,  and  I  was  thrown  on  my  own 


10  Memoir 

resources.  I  first  got  a  place  in  a  village  store ,- 
but  I  soon  found  that  that  would  not  do,  as  the 
store  kept  open  until  ten  o  'clock  at  night,  leaving 
me  no  time  to  read  or  to  continue  my  studies.  I 
threw  up  the  place  and  hired  myself  as  a  field  hand 
to  a  farmer  at  five  dollars  a  month  and  my  board. 
I  worked  very  hard,  and  so  improved  in  health, 
and  I  had  my  evenings  to  myself.  I  kept  this  up 
for  several  months  until  one  day  an  eminent,  very 
intelligent  and  kind  hearted  lawyer,  R.  H.  Round- 
tree,  whom  I  had  never  seen,  but  of  whom  I  had 
heard  much,  living  at  Lebanon,  the  county  seat, 
nine  miles  off,  called  at  the  farm  house  where  I 
was  staying,  and  remained  all  night.  I  was  much 
overawed  by  this  tall  man  of  mature  years,  of 
simple  manners  and  grave  but  kindly  expression 
of  countenance;  but  during  the  evening  he  man- 
aged to  draw  me  out  to  some  extent.  Next 
morning  he  told  me  that  if  I  desired  it  he  would 
give  me  a  home  in  his  house,  and  would  have  me 
appointed  to  the  position  of  deputy  clerk  at 
Lebanon;  and  this  offer  I  was  only  too  glad  to 
accept.  This  fortunate  circumstance  gave  me  an 
experience  that  proved  immensely  useful  in  my 
later  career ;  for  here  I  learned  a  great  deal  about 
legal  forms,  and  had  an  opportunity  to  witness  the 
proceedings  of  the  local  courts  and  to  hear  some 
very  distinguished  lawyers  at  the  bar.  Among 
these  was  the  celebrated  Ben  Hardin,  by  far  the 
greatest  trial  lawyer  that  I  have  ever  known,  and 
Joshua  F.  Bell,  of  Danville,  whose  pleasing,  per- 
suasive and  powerful  eloquence  was  always  the 


Memoib  LI 

delight  of  every  one  that  heard  him;  with  many 
others  of  lesser  note. 

"  Under  the  care  and  tuition  of  my  patron  and 
benefactor,  I  began  the  study  of  law,  striving  in 
the  meantime  to  make  up  as  far  as  possible  the 
defects  of  my  early  education;  an  enterprise  in 
which  I  have  never  succeeded. 

"  After  the  time  thus  spent  I  attended  the  lec- 
tures of  the  law  school  of  Transylvania  University 
at  Lexington,  Kentucky,  where  I  graduated  in 
September,  1853.  I  obtained  a  license  to  practice 
law  from  the  Kentucky  Court  of  Appeals,  but  did 
not  expect  to  engage  in  the  practice  of  the  law 
in  that  state.  My  health  had  always  been  frail, 
especially  in  the  winter  season;  and  I  desired  to 
go  to  a  warmer  climate.  On  the  advice  of  friends 
I  made  up  my  mind  to  go  to  Batesville  in  the 
northern  part  of  this  state.  In  the  meantime  I 
engaged  to  be  married,  and  was  married  on  the 
25th  day  of  October,  1853,  to  Miss  Margaret  T. 
Gibbs,  of  Lebanon.  My  wife  and  I  celebrated  our 
golden  wedding  in  1903. 

"On  the  5th  day  of  December,  1853,  we  started 
for  our  new  home,  traveling  nearly  all  the  way  in 
river  steamers,  consuming  fifteen  days  in  the 
journey.  I  have  since  traveled  from  Liverpool  to 
Little  Rock  more  than  once  in  less  time.  When  I 
made  my  trip  from  Kentucky  I  did  not  know  a 
single  human  being  in  this  state.  I  found  Bates- 
ville a  pleasant  village  of  about  1,000  inhabitants, 
agreeably  situated  on  the  upper  White  River, 
about  the  head  of  navigation  on  that  stream.    I 


12  Memoir 

bought  a  house  in  the  village,  and  rented  an  office ; 
but  did  not  begin  to  practice  regularly  for  about 
two  years,  in  the  meantime  devoting  my  time  to 
the  study  of  the  statutes  and  decisions  of  this 
state.  Afterwards  I  had  reason  to  congratulate 
myself  on  my  success.  In  1860  I  was  appointed 
without  my  knowledge  by  Governor  Conway, 
chancellor  of  the  Court  of  Chancery,  held  at  Little 
Rock,  the  seat  of  government.  I  did  not  wish  to 
accept,  as  I  felt  that  I  was  too  young  for  the  posi- 
tion; but,  at  the  solicitation  of  my  friends  I  was 
induced  to  do  so.  In  1862  I  removed  from  Bates- 
ville  temporarily  to  Washington,  in  this  state, 
which  on  the  capture  of  Little  Rock  by  the 
Federals  was  made  temporarily  the  seat  of  the 
state  government.  At  the  close  of  the  Civil  war 
I  removed  to  Little  Rock,  and  again  engaged  in 
the  practice  of  the  law,  which  has  been  continued 
until  the  present  time. 

' '  This  is  about  all  that  relates  to  my  early  life ; 
all  very  commonplace,  and  hardly  worth  telling. ' ' 

To  this  sketch  of  his  early  days  a  few  things 
should  be  added. 

His  father  was  a  profoundly  religious  man,  a 
devout  member  of  the  Christian  Church,  com- 
monly known  as  the  Campbellite.  His  preoccupa- 
tion with  the  Old  Testament  history  led  him  to 
give  his  son  the  name  of  Uriah,  which  the  latter 
disliked  so  much  that  he  never  used  it  where  its 
use  could  be  avoided.  After  the  death  of  Mr. 
Rose's  mother  Dr.  Rose  sank  into  a  gloomy 
fanaticism  bordering  on  religious  mania,  which 


Memoir  13 

spread  an  intolerable  sadness  over  the  home.  The 
reaction  against  this  probably  begat  in  his  son 
that  fine  spirit  of  toleration  that  characterized  his 
mental  attitude  throughout  life. 

He  had  made  such  progress  in  his  legal  studies 
while  in  Mr.  Roundtree's  office  that  he  graduated 
at  the  law  school  after  an  attendance  of  six 
months.  He  entered  it  in  April,  1853,  and  received 
his  diploma  in  the  following  September. 

The  singular  charm  of  manner  which  always 
won  for  him  the  regard  of  everyone  with  whom  he 
came  in  contact  and  often  their  devoted  attach- 
ment must  have  been  manifest  in  these  early  days. 
Stopping  at  a  farm  one  night  in  his  travels,  Mr. 
Roundtree  was  so  impressed  with  the  slender, 
delicate  boy  that  he  took  him  next  morning  to  his 
own  home,  made  him  his  deputy  and  treated  him 
almost  as  a  son.  At  that  time  Mr.  Rose  wrote  a 
most  clerkly  hand  in  the  Spencerian  style,  very 
different  from  the  highly  artistic  but  singular 
handwriting  of  his  later  days. 

But  a  more  remarkable  illustration  of  the 
charm  of  his  personality  was  afforded  when  he 
went  to  Lexington  to  the  law  school.  It  had  been 
established  and  was  presided  over  by  Chief  Jus- 
tice Robertson,  the  greatest  jurist  that  Kentucky 
has  ever  produced.  A  man  of  immense  ability, 
in  a  comparatively  brief  career  at  the  bar  he 
accumulated  a  large  fortune.  Then  he  built  him- 
self at  Lexington  a  stately  mansion  surrounded 
by  extensive  grounds,  accepted  the  chief-justice- 
ship and  opened  a  law-school  that  at  once  became 


14  Memoir 

famous.  His  home  was  the  centre  of  the  social 
life  of  Kentucky.  Every  distinguished  visitor  to 
the  state  became  his  guest  as  a  matter  of  course. 

When  Mr.  Eose,  a  youth  of  nineteen,  went  to 
Lexington  with  the  scant  savings  of  his  three  years 
in  the  clerk's  office,  he  stopped  at  a  poor  boarding- 
house  suited  to  his  means.  The  fare  was  hard, 
the  beds  harder,  the  manners  of  the  host  and 
boarders  harder  still.  It  was  an  uncongenial  place 
for  the  delicate  youth,  so  unusually  sensitive  and 
refined. 

Next  morning  he  presented  himself  to  the  great 
Chief  Justice  to  arrange  for  admission  to  the 
school.  Judge  Kobertson  at  once  became  inter- 
ested in  him,  and  finally  asked  him  where  he  was 
staying.  When  Mr.  Rose  had  told  him  where,  he 
said,  "It  is  a  pretty  rough  place,  is  it  not?"  Mr. 
Rose  explained  that  it  was,  but  that  it  was  as  good 
as  he  could  afford  to  pay  for.  "How  would  you 
like  to  board  with  me!"  inquired  Judge  Robert- 
son. The  youth  replied  that  he  had  not  the  means 
to  live  in  such  style.  ' '  That  makes  no  difference, ' ' 
said  the  Chief  Justice.  "I  know  that  you  would 
not  want  to  stay  with  me  gratis ;  so  you  can  pay 
me  the  same  board  that  you  are  paying  where 
you  are. "  So  to  his  astonishment  the  young  law- 
student  found  himself  installed  in  the  splendid 
mansion  of  the  great  jurist,  and  treated  as  a  mem- 
ber of  the  family.  Here  he  met  all  the  eminent 
men  of  the  time  who  visited  Lexington. 

At  the  law  school  two  men  made  a  lasting 
impression  upon  him;  and  his  distinguished  suc- 
cess at  the  bar  was  due  to  the  fact  that  he  mastered 


Memoib  15 

the  teachings  of  each.  Judge  Robertson  was  a 
great  constructive  jurist.  He  despised  technical- 
ities, and,  as  far  as  his  associates  on  the  bench 
would  permit,  he  brushed  them  aside.  His 
powerful  mind  grasped  the  great  elemental  prin- 
ciples of  the  law  founded  on  right  and  justice, 
expounded  them  with  convincing  eloquence  and 
applied  them  with  an  enlightened  judgment. 
Judge  Marshall,  on  the  other  hand,  his  associate 
on  the  bench  and  in  the  law  school,  was  a  master 
of  all  the  intricacies  of  special  pleading,  and 
looked  upon  them  as  the  very  soul  of  the  law. 
The  young  man  grasped  both  points  of  view.  In 
the  years  to  come  he  became  a  broad-minded  jurist 
and  also  the  most  accomplished  special  pleader  of 
his  state. 

When  he  graduated  he  hesitated  between 
settling  in  Louisville  or  coming  to  Arkansas.  The 
frailty  of  his  health  led  him  to  decide  in  favor  of 
Arkansas,  on  account  of  its  milder  climate  and  the 
life  in  the  open  air  that  would  attend  the  riding 
of  the  circuit  in  a  new  country. 

His  bride  had  a  small  estate  that  she  had 
inherited  from  her  father,  and  this  made  the  young 
couple  independent  until  he  could  master  the  juris- 
prudence of  the  new  commonwealth,  and  equip 
himself  for  serious  work.  From  the  first  he  held 
himself  high,  and  rarely  accepted  employment 
save  in  the  courts  of  record. 

At  this  time  the  system  of  practice  in  Arkansas 
was  probably  the  most  technical  that  the  world 
has  ever  seen.  Chief  Justice  Ringo  had  pain- 
fully sought  out  all  of  the  technicalities  that  had 


16  Memoir 

ever  existed  in  common-law  pleading  through  the 
ages,  and  had  put  them  all  in  force  at  once.  Mr. 
Rose  perceived  the  power  of  the  weapon  that  this 
placed  in  the  hand  of  the  accomplished  special 
pleader,  and  devoted  himself  with  especial  energy 
to  the  study  of  Chitty;  so  that  he  soon  became  a 
potent  factor  at  the  bar.  His  adversary  found 
himself  tripped  up  and  thrown  ignominiously  out 
of  court,  or  saw  final  judgment  entered  against 
him  on  a  question  of  pleading,  before  he  realized 
that  he  was  in  peril.  In  a  little  while  this  delicate 
beardless  youth,  who  entered  upon  the  practice 
at  the  age  of  nineteen,  was  one  of  the  leaders  of 
his  circuit.  In  his  heart  he  had  a  great  contempt 
for  this  artificial  system,  where  not  more  than  one 
case  in  ten  was  decided  upon  its  merits;  but  not 
even  Absolom  Fowler  was  his  superior  in  the  use 
of  the  two-edged  sword  which  it  put  at  his  service. 
The  system  had  one  advantage — the  ignoramus 
could  not  stay  in  court  at  all,  and  the  accomplished 
lawyers  had  no  rivalry  to  fear  from  the  petti- 
foggers who  now  infest  the  bar.  So  his  merits 
were  recognized  much  more  quickly  than  would 
be  the  case  to-day. 

On  one  occasion  he  had  an  important  case  for  a 
gentleman  of  New  Orleans.  He  won  it,  and  his 
client  came  up  to  gather  in  the  fruits  of  success. 
Entering  the  office,  he  asked  for  Mr.  Rose.  The 
beardless  youth,  whose  slender,  delicate  frame 
made  him  look  even  younger  than  he  was,  replied, 
"I  am  Mr.  Rose."  The  gentleman  patted  him  on 
the  head,  and  answered,  "Oh,  my  boy,  I  want  to 
see  your  papa." 


Memoir  17 

He  told  an  anecdote  which  should  be  preserved 
as  illustrating  the  crudeness  of  life  in  those  early 
times.  One  bitter  winter  day  he  saw  a  man  walk- 
ing back  and  forth  in  front  of  his  office,  evidently 
suffering  greatly  from  the  cold.  Finally  he  went 
to  the  door,  and  asked  the  man  to  come  in;  when 
his  visitor  exclaimed  in  surprise,  "Why,  are  you 
there?  I  saw  the  door  shut,  and  so  I  supposed  that 
nobody  was  at  home.,,  No  wonder  that  tuber- 
culosis was  then  unknown  in  Arkansas ! 

With  him  his  brother-in-law,  William  E.  Gibbs, 
came  to  Batesville,  and  they  formed  a  partnership. 
Mr.  Gibbs  was  a  good  lawyer,  but  had  not  the 
genius  for  the  law  that  characterized  his  associate. 
He  took  the  mountain  counties  of  the  circuit,  whose 
hardships  his  more  robust  constitution  enabled 
him  to  support.  Mr.  Rose  took  the  eastern  coun- 
ties, where  the  litigation  was  more  important, 
where  he  had  to  measure  himself  with  the  leaders 
of  the  Little  Rock  bar,  and  where  he  soon  taught 
them  that  they  had  found  in  him  a  f oeman  worthy 
of  their  steel.  Absolom  Fowler  was  the  one  who 
came  most  frequently.  A  powerful,  aggressive, 
bitter  man,  merciless  in  speech  and  a  consummate 
master  of  all  the  arts  of  special  pleading,  he  was 
feared  by  his  brethren,  who  too  often  had  cause 
to  resent  his  caustic  tongue.  But  in  the  refined 
elegance  of  Mr.  Rose  that  was  something  that 
disarmed  his  wrath,  and  he  recognized  in  the 
young  man  a  mastery  of  his  chosen  weapon  equal 
to  his  own;  so  that  to  Mr.  Rose  alone  of  all  his 
adversaries  he  was  uniformly  courteous. 

In  fact,  from  the  beginning  Mr.  Rose  had  the 


18  Memoir 

rare  faculty  of  protecting  his  client's  rights  with 
extreme  vigilance  while  retaining  the  good  will 
of  his  professional  brethren.  He  never  conducted 
a  lawsuit  as  a  personal  grievance.  He  was  always 
the  advocate,  representing  his  client,  putting  his 
cause  in  the  most  favorable  light,  but  never  indulg- 
ing in  personalities.  His  exquisite  refinement  and 
graceful  courtesy  made  it  impossible  for  the 
coarsest  vulgarian  to  insult  him,  and  lifted  the 
conduct  of  litigation  into  a  higher  plane. 

Then,  as  always,  his  most  conspicuous  personal 
trait  was  grace.  Tall  and  slender,  every  move- 
ment was  graceful.  It  seemed  impossible  for  him 
to  do  an  ungraceful  act ;  as  it  was  impossible  for 
him  to  utter  an  unbecoming  speech.  No  one  ever 
heard  him  say  an  indecent  word  or  tell  a  vulgar 
anecdote;  and  vulgarity  was  impossible  in  his 
presence.  With  his  vast  and  varied  reading  it 
was  inevitable  that  he  should  have  become 
acquainted  with  all  aspects  of  human  depravity; 
but  he  instinctively  put  aside  all  that  was  not 
becoming  to  the  high-minded  gentleman.  He  had 
a  keen  sense  of  humor,  and  his  conversation  was 
full  of  amusing  anecdotes  and  bright  with  a 
scintillating  wit.  At  every  gathering  of  the  bar 
he  was  the  centre  of  a  delighted  circle;  but  none 
of  the  countless  droll  stories  that  he  told  would 
have  brought  a  blush  to  a  woman's  cheek. 

While  he  lived  at  Batesville  he  studied  French 
first  under  a  German  and  later  under  two  well- 
educated  and  aristocratic  young  women  who  had 
come  from  Paris  to  join  their  brother.  The 
brother  died,  leaving  them  in  straightened  circum- 


Memoib  19 

stances.  Mr.  Rose  aided  them  in  their  distress, 
and  had  them  much  in  his  home.  In  this  way  he 
laid  the  foundation  for  the  truly  extraordinary 
mastery  of  the  French  language  that  he  after- 
wards achieved.  There  was  also  at  Batesville  a 
Madame  Audigier,  a  French  lady  who  supported 
herself  by  teaching  music  and  her  native  language. 
Under  her  Mr.  Rose  also  studied.  During  this 
period  her  grandmother  came  from  Paris  to  visit 
her.  Ninety-five  years  of  age,  but  still  bright  and 
vivacious  as  a  girl,  the  old  lady  crossed  the  sea  in 
one  of  the  wretched  ships  of  those  days,  and 
ascended  from  New  Orleans  on  a  steamboat. 
Eighteen  years  of  age  at  the  time  of  the  taking 
of  the  Bastille,  she  had  witnessed  all  the  horrors 
of  the  French  Revolution ;  she  had  seen  the  King 
and  Queen,  the  Girondists,  Danton  and  Robes- 
pierre borne  in  the  death-cart  to  the  guillotine; 
and  amongst  her  most  cherished  possessions  was 
a  handkerchief  soaked  in  the  blood  of  Robespierre. 
It  was  perhaps  in  listening  to  her  that  Mr.  Rose 
acquired  that  deep  interest  in  the  history  of  the 
French  Revolution  that  led  him  in  later  years  to 
read  so  profoundly  on  the  subject,  and  to  seek 
out  all  the  places  in  Paris  made  memorable  by 
the  events  of  that  stupendous  tragedy.  After  a 
pleasant  visit  of  some  months'  duration,  the 
sprightly  old  lady  returned  to  her  home  in  Paris 
by  the  route  she  came. 

In  these  early  days  Mr.  Rose  was  laying  the 
foundations  of  the  vast  and  singularly  varied 
knowledge  that  he  afterwards  acquired.  The  most 
striking  characteristic  of  his  mind  was  an  insati- 


22  Memoir 

With  the  fall  of  Little  Eock  in  1863  the  seat  of 
state  government  was  transferred  to  Washington 
on  its  southwestern  border.  Thither  the  chan- 
cellor removed  with  his  family.  There  was  prac- 
tically no  business  in  his  court,  and  he  spent  his 
time  mostly  in  study. 

Perhaps  no  state  save  Virginia  contributed  so 
large  a  quota  to  the  Confederate  service  in  pro- 
portion to  its  population  as  Arkansas.  In  every 
army  numbers  of  Arkansans  were  enlisted.  They 
marched  away,  and  frequently  nothing  more  was 
heard  of  them.  The  greater  part  were  in  the 
armies  of  Virginia  and  Tennessee;  but  their  dis- 
tracted families  knew  not  where.  So  Judge  Rose 
was  requested  to  go  to  Richmond  and  make  up  a 
roster  of  the  Arkansas  troops,  that  it  might  be 
known  what  had  become  of  them.  On  July  24, 
1864,  he  started  out  upon  his  perilous  journey; 
sometimes  on  horseback,  sometimes  on  trains, 
crossing  the  Mississippi  in  a  skiff  exposed  to  the 
fire  of  a  Northern  gun-boat,  and  passing  with 
many  hardships  through  a  territory  devastated  by 
the  horrors  of  war.  Finally  he  reached  Richmond, 
met  President  Davis,  Judah  P.  Benjamin  and 
other  leaders  of  the  Confederacy,  and  with  infinite 
toil  completed  the  roster  of  the  Arkansas  troops. 
Then  he  returned  through  a  country  still  more 
devastated,  and  reached  home  the  day  after 
Christmas  of  that  year.  Unfortunately  the  bulky 
roster  was  burned  when  Jackson,  Mississippi,  was 
captured  by  the  Federals,  and  the  result  of  all  his 
labors  perished. 

In  the  fall  of  1865  he  removed  to  Little  Rock 


Memoir  23 

and  formed  a  partnership  with  Judge  Watkins, 
formerly  Chief  Justice  of  the  State,  and  a  very- 
accomplished  lawyer  of  broad  and  enlightened 
views.  This  partnership  continued  until  Judge 
Watkins '  death  in  1872.  The  firm  had  a  very 
extensive  business,  probably  the  largest  in  the 
state  at  that  time.  They  were  engaged  in  nearly 
all  of  the  most  important  cases. 

During  these  days  he  made  and  published  his 
Digest  of  the  Arkansas  Reports,  the  first  work  of 
the  kind  that  had  appeared.  It  was  admirably 
done,  and  proved  a  boon  to  the  profession. 

In  1868  the  question  was  presented  to  the  people 
whether  the  Reconstruction  Constitution  should 
be  adopted.  Along  with  all  men  who  had  the  wel- 
fare of  the  state  at  heart  Judge  Rose  resisted  this 
with  all  his  might,  making  public  speeches  against 
it;  but  the  iniquitous  machinery  then  in  force 
declared  it  adopted,  and  the  saturnalia  of  carpet- 
bag misrule  began. 

The  practice  was  hard  in  those  days.  The 
juries  were  composed  largely  of  ignorant  negroes 
anxious  to  wreak  their  spite  upon  their  former 
masters.  Some  of  the  judges  were  honest ;  others 
were  notoriously  corrupt;  and  all  were  hostile  to 
the  people  whose  rights  they  were  called  upon  to 
adjudge.  But  the  change  brought  one  blessing — 
all  the  technicalities  of  common-law  pleading  were 
swept  away,  and  gave  place  to  an  enlightened  code 
of  procedure.  Most  of  the  old  lawyers  resented 
the  change.  It  deprived  them  of  a  weapon  the 
mastery  of  whose  use  had  required  years  of  labor. 
Judge  Watkins  and  Judge  Rose  alone  welcomed 


24  Memoie 

the  new  code,  and  Judge  Rose  at  once  became  as 
distinguished  as  a  code-pleader  as  he  had  been  as 
a  pleader  at  common  law,  stating  his  facts  in  the 
simplest  and  plainest  language.  Indeed,  he  was 
always  an  ardent  legal  reformer,  and  many  of  the 
most  enlightened  statutes  that  have  been  adopted 
in  Arkansas  owe  their  origin  to  him. 

Throughout  the  days  of  reconstruction  he  con- 
tinued to  fight  the  battle  of  the  people.  He 
defended  Lieutenant  Governor  Johnson  when  the 
party  in  power  sought  to  impeach  him,  to  make 
way  for  a  serviceable  tool,  and  when  in  1873  the 
Brooks-Baxter  war  broke  out  he  was  one  of  Bax- 
ter's most  trusted  advisors;  for  Baxter,  whose 
home  was  at  Batesville,  had  long  known  his  worth. 
It  was  realized  that  the  issue  of  the  conflict  must 
be  settled  at  Washington,  and  that  a  man  of  great 
judgment  and  tact  must  be  sent  to  represent  the 
people  there.  Judge  Rose  was  chosen,  and  it  was 
largely  through  his  able  diplomacy  that  President 
Grant 's  government  was  induced  to  decide  in  Bax- 
ter's  favor.  He  returned  crowned  with  victory; 
and  thenceforth  his  serious  troubles  were  over. 
Though  but  forty  years  of  age,  he  was  generally 
regarded  as  the  leader  of  the  bar  of  his  state ;  and 
in  the  enjoyment  of  an  extensive  practice  his  busy 
days  flew  by,  divided  between  labor  and  study. 
He  had  taken  up  German  after  the  Civil  war,  and 
he  acquired  such  mastery  of  it  that  he  was  able 
to  make  public  speeches  in  that  difficult  tongue. 
He  studied  the  Civil  Law,  and  a  series  of  articles 
published  in  the  Southern  Law  Review  on  ' '  Some 
Controversies  of  Modern  Continental  Jurists" 


Memoib  25 

awakened  a  wide-spread  interest  by  reason  of  their 
great  learning  and  their  enlightened  comprehen- 
sion of  the  guiding  principles  that  should  control 
all  jurisprudence.  He  was  often  importuned  to 
seek  public  office,  and  in  1877  a  large  majority  of 
the  legislature  offered  him  a  seat  in  the  United 
States  Senate;  but  he  declined.  The  only  posi- 
tion that  he  accepted  was  one  upon  the  commis- 
sion of  three  to  straighten  out  the  tangled  finances 
of  the  state,  which  the  carpet-baggers  had  thrown 
into  almost  hopeless  confusion — a  hard  and  thank- 
less task  with  no  reward  save  the  consciousness  of 
duty  fulfilled. 

His  influence  over  the  bar  of  the  state  was  enor- 
mous and  all  for  good.  The  exquisite  courtesy  of 
his  manner  was  a  continual  lesson  in  urbanity. 
The  high  standard  of  professional  ethics  that  he 
maintained  was  a  continual  beacon,  pointing  out 
the  way  to  the  younger  men.  The  diligence  with 
which  he  prepared  his  cases  and  the  high  plane 
on  which  he  carried  on  the  contest  was  a  constant 
call  to  better  things.  For  a  considerable  time 
chairman  of  the  Democratic  State  Central  Com- 
mittee, he  taught  men  how  an  earnest  interest  in 
public  questions  could  be  free  from  all  self-seeking 
ambition.  He  taught  the  bar  sobriety.  When  he 
came  to  Little  Kock,  it  was  the  custom  for  the 
lawyers  engaged  in  the  trial  of  a  case  to  go  and 
take  a  drink  together  at  each  adjournment  of  the 
court,  to  prove  that  nothing  that  had  occurred 
had  marred  their  kindly  feelings  toward  one 
another.  Judge  Watkins  and  Judge  Rose  were 
both  frail,  and  realized  that  these  continual  pota- 


26  Memoib 

tions  would  undermine  their  health ;  so  they  soon 
declined  to  accept  the  customary  invitations.  At 
first  they  gave  great  offense;  but  gradually  their 
example  had  its  effect,  and  the  Little  Rock  bar, 
and,  indeed,  the  bar  of  the  whole  state  gradually 
forsook  its  drinking  habits,  and  became  so  abstem- 
ious that  now  it  is  a  rare  thing  to  see  a  reputable 
lawyer  enter  a  saloon. 

In  1872  Judge  Rose  began  his  travels  with  a  trip 
over  Europe  as  far  as  Vienna  and  Naples.  This 
he  repeated  a  number  of  times,  including  Scan- 
dinavia, Russia  and  Turkey  in  the  lands  he  visited. 
He  also  traveled  in  Mexico,  the  West  Indies  and 
Hawaii,  his  mind  always  alive  to  new  impressions, 
his  intellectual  curiosity  always  keenly  awake. 

He  remained  to  the  last  a  tireless  reader  in 
every  field  of  human  endeavor.  He  kept  up  with 
all  the  discoveries  of  science  and  with  all  cunning 
inventions.  He  was  a  great  reader  of  history  and 
of  memoirs.  He  read  most  of  the  poetry  and 
dramas  that  appeared  in  the  languages  that  he 
understood.  Of  books  of  travel  he  was  an  inces- 
sant reader.  He  was  deeply  interested  in  all 
metaphysical  and  philosophic  movements.  He  yet 
found  time  to  read  all  the  notable  fiction  of  his 
time.  He  accumulated  a  scientific  and  literary 
library  of  more  than  eight  thousand  volumes,  all 
of  which,  save  the  works  of  reference,  he  had  read. 
He  became  much  interested  in  the  French  bar,  and 
read  very  extensively  on  the  subject.  There  is  in 
English  no  adequate  history  of  the  bar  of  France, 
and  he  resolved  to  supply  the  defect.  He  wrote  a 
book,  which,  if  published,  would  have  made  a  vol- 


Memoir  27 

ume  of  some  six  hundred  pages.  I  was  privileged 
to  read  it.  It  was  an  admirable  history,  lucid  and 
well  proportioned  and  presenting  the  subject  with 
great  charm  of  style.  I  urged  its  immediate  pub- 
lication ;  but  he  deferred  it,  and  finally,  in  a  fit  of 
excessive  modesty,  burned  the  book. 

Full  of  thought  and  knowledge  and  gifted  with  a 
rare  felicity  of  expression,  he  was  often  called 
upon  to  make  public  addresses,  particularly  at 
gatherings  of  the  bar,  from  Pennsylvania  and  Vir- 
ginia in  the  east  to  Colorado  in  the  west.  As  it 
is  the  purpose  of  this  volume  to  preserve  a  selec- 
tion of  these,  they  may  be  left  to  speak  for 
themselves. 

He  was  always  a  Democrat,  and  believed  earn- 
estly in  the  ancient  principles  of  that  party.  But 
he  lent  himself  to  none  of  the  vagaries  which  it 
has  of  late  years  too  often  followed.  He  looked 
upon  the  protective  tariff  as  an  abomination  that 
led  to  infinite  corruption,  and  upon  free  silver  as 
the  clamor  of  the  dishonest  for  a  scaling  of  their 
debts.  He  stood  firmly  with  Mr.  Cleveland. 
Indeed,  Mr.  Cleveland  owed  his  nomination  in  no 
small  measure  to  Judge  Rose.  As  head  of  the 
Arkansas  delegation  in  the  convention  that  first 
nominated  him,  Judge  Rose  succeeded  in  throw- 
ing the  whole  vote  of  the  state  to  Mr.  Cleveland ; 
and  owing  to  its  alphabetical  position  near  the 
head  of  the  list,  as  the  votes  were  called  again  and 
again,  the  solid  phalanx  of  Arkansas  evoked  much 
applause  and  had  a  decided  influence  upon  the  col- 
umn that  followed. 

Like  every  successful  lawyer,  he  devoted  much 


28  Memoir 

of  his  time  to  the  service  of  corporations,  but 
never  did  he  wear  their  collar.  He  always  main- 
tained an  attitude  of  dignified  independence,  and 
he  never  permitted  the  interest  of  his  clients  to 
sway  his  judgment  on  any  public  question.  He 
was  first  of  all  a  man  and  a  citizen,  placing  the 
public  welfare  above  every  other  consideration, 
and  uttering  his  views  freely  and  fearlessly  when- 
ever he  felt  that  the  interests  of  the  people  were  in 
jeopardy. 

Those  who  heard  him  in  court,  and  saw  with 
what  ease  and  grace  he  handled  the  questions 
under  consideration  had  no  idea  of  the  tremendous 
labor  that  laid  the  solid  foundation  of  his  argu- 
ment. There  was  no  parade  of  learning  and  all 
seemed  facile  and  spontaneous.  His  briefs,  too, 
were  short  and  to  the  point,  characterized  by 
remarkable  clearness  of  diction  and  a  felicity  of 
style  that  made  them  delightful  reading.  But  his 
preparation  of  his  cases  was  most  laborious. 
Before  looking  up  the  law  he  thoroughly  mastered 
the  facts,  so  that  he  was  sure  of  the  ground  upon 
which  he  stood.  Then  he  threw  himself  into  the 
investigation  of  the  law  with  an  earnestness  that 
bordered  on  frenzy.  Often  he  would  make  himself 
sick  from  overwork  in  the  preparation  of  an 
important  case.  When  he  had  accumulated  all 
the  law  that  was  to  be  found  in  the  books  he  did 
not  throw  at  the  court  the  undigested  mass.  He 
sifted  the  chaff  from  the  wheat,  and  used  only  the 
best ;  presenting  it  in  so  persuasive  a  manner  that 
success  usually  crowned  his  efforts. 

He  was  not  a  noisy  speaker.    His  voice  was  not 


Memoir  29 

strong;  but  it  was  well  modulated  and  agreeable 
to  the  ear.  In  oral  discourse  he  had  the  same 
felicity  of  diction  as  in  writing.  He  never 
repeated  himself,  never  hesitated  for  a  word ;  and 
his  speeches,  if  taken  down  in  shorthand,  would 
have  been  found  to  be  models  of  literary  style.  He 
excelled  particularly  in  argument  and  exposition. 
His  vast  knowledge  of  law  and  of  history  enabled 
him  to  bring  to  bear  upon  any  subject  an  extraor- 
dinary profusion  of  persuasive  illustrations.  He 
also  had  a  fund  of  wit  and  humor  that  illumined 
every  discourse  with  delightful  sallies.  At  times 
he  could  be  deeply  moving ;  and  when  his  indigna- 
tion was  aroused,  he  was  capable  of  the  most 
withering  sarcasm  and  the  most  merciless  ridicule. 

In  his  relations  with  the  courts  he  was  a  model. 
He  was  courteous  and  respectful,  but  he  exacted 
an  equal  respect  and  courtesy  in  return.  With 
their  mistakes  he  was  patient;  but  when  he 
believed  that  they  were  acting  from  unworthy 
motives,  his  indignation  was  expressed  in  the  most 
fearless  manner.  More  than  one  unworthy  judge 
received  at  his  hands  a  castigation  that  he  never 
forgot. 

He  was  one  of  the  happiest  of  after-dinner 
speakers,  witty,  amusing  and  eloquent  by  turns. 
These  speeches  were  all  extemporaneous  and  only 
one  of  them  was  taken  down  in  short-hand.  This 
is  given  in  the  following  pages. 

Early  in  1907,  Mr.  Roosevelt,  then  president  of 
the  United  States,  passed  through  Little  Rock.  At 
a  luncheon  given  to  him  Judge  Rose  responded  to 
a  toast  in  his  honor.    This  made  so  favorable  an 


30  Memoib 

impression  upon  Mr.  Eoosevelt  that  he  appointed 
Judge  Rose  an  ambassador  to  the  Hague  Peace 
Conference  of  that  year,  along  with  Mr.  Jos.  H. 
Choate  and  General  Horace  Porter.  From  the 
day  of  his  appointment  Judge  Rose  devoted  his 
whole  time  to  the  study  of  international  law,  so 
that  when  the  conference  assembled  he  was  far 
better  equipped  than  most  of  the  delegates.  Added 
to  this  was  his  perfect  mastery  of  the  French 
language;  and  these,  with  the  charm  of  manner 
that  made  him  a  natural  diplomat,  gave  him  a 
conspicuous  position  in  that  distinguished  gather- 
ing. The  conference,  of  course,  did  not  put  a  stop 
to  wars;  but  it  did  much  to  codify  the  law  of 
nations,  and  so  to  avoid  future  misunderstandings. 

On  October  25,  1903,  he  and  Mrs.  Rose  cele- 
brated their  golden  wedding.  All  their  children 
were  with  them  save  one,  who  had  died  in  infancy. 
Of  the  nine  all  but  one  were  married,  and  each 
brought  to  the  gathering  his  first  wife  or  her  first 
husband.  The  occasion  was  a  memorable  one  in 
the  annals  of  Little  Rock.  Most  of  the  city  turned 
out  to  congratulate  the  bride  and  groom,  and  many 
friends  came  from  a  distance  to  do  them  honor. 

It  has  been  well  said  that  lawyers  usually  work 
hard,  live  well  and  die  poor.  Judge  Rose  was 
certainly  a  tireless  worker  and  he  gave  himself 
and  family  every  reasonable  comfort;  but  for- 
tunately he  did  not  die  in  poverty.  Though  he 
was  reasonable  in  his  charges  and  generous  in  his 
donations  to  charity,  the  amount  of  business  that 
he  dispatched  was  so  enormous  that  after  bring- 
ing up  nine  children  he  was  able  to  accumulate  a 


Memoib  31 

competency,  so  that  his  declining  years  were 
passed  in  dignified  ease. 

When  he  reached  seventy  he  realized  that  his 
strength  was  failing ;  so  he  retired  from  the  active 
practice,  and  devoted  the  remainder  of  his  life  to 
study  and  travel.  From  time  to  time  he  would 
take  a  case  in  the  appellate  courts  that  interested 
him,  and  his  briefs  and  arguments  made  at  this 
period  of  abundant  leisure  were  probably  the 
ablest  and  the  most  profound  of  all.  It  was  char- 
acteristic of  his  chivalrous  nature  that  his  last 
appearance  in  court  was  on  behalf  of  an  unfortu- 
nate young  woman  who  had  been  despoiled  of  her 
very  considerable  inheritance  under  the  pretence 
that  she  was  illegitimate.  The  spoilers  had 
buttressed  themselves  behind  judgments  and 
confirmations  until  their  position  seemed  impreg- 
nable; but  with  an  amount  of  labor  and  research 
that  was  almost  incredible,  he  succeeded  in  break- 
ing down  all  their  defenses  and  in  restoring  her  to 
the  enjoyment  of  her  rights. 

To  the  end  his  mind  retained  not  only  its  youth- 
ful vigor,  but  its  youthful  outlook.  Mentally  he 
never  grew  old,  never  became  ultra  conservative, 
a  laudator  temporis  peracti.  He  believed  that  the 
world  was  on  the  whole  continually  growing  bet- 
ter, and  he  was  interested  in  its  every  advance; 
and  this  interest  remained  unabated  to  the  last. 

At  the  beginning  of  1913  it  was  apparent  that 
his  bodily  strength  was  rapidly  failing.  His  mind 
remained  as  bright  and  clear  as  ever ;  but  he,  who 
had  been  a  great  walker,  was  unable  to  walk  the 
half  dozen  blocks  from  his  home  to  his  office.    In 


32  Memoir 

the  early  summer  he  had  a  fall.  No  bones  were 
broken,  and  no  serious  injuries  were  apparent; 
but  a  fever  set  in  that  could  not  be  checked,  and 
gradually  the  vital  forces  ebbed  away  until  at 
half  past  one  on  the  morning  of  August  twelfth, 
in  the  presence  of  his  weeping  family,  he  sank 
peacefully  into  that  sleep  from  which  there  is  no 
waking. 

He  was  buried  on  the  fourteenth  in  Oakland 
Cemetery  at  Little  Rock.  The  funeral  was  from 
his  home  and  was  without  ostentation;  but  all 
the  state,  city  and  county  offices  were  closed  by 
public  proclamation,  an  honor  perhaps  not  shown 
to  any  other  private  citizen  of  Arkansas. 

When  you  find  that  a  man  has  accomplished 
great  things,  it  is  usually  necessary  to  inquire 
about  his  wife.  A  foolish  wife  can  wreck  the 
career  of  almost  any  man.  Judge  Rose  was  for- 
tunate in  this  respect,  as  in  many  others.  Though 
the  father  of  ten  children,  nine  of  whom  reached 
maturity  and  eight  of  whom,  with  many  grand- 
children, survive  him,  no  household  cares  were 
suffered  to  intrude  upon  his  studies  or  his  labors. 
So  frail  that  there  was  never  a  time  from  the  day 
of  his  birth  when  any  member  of  his  family 
expected  him  to  live  for  ten  years,  and  often 
thoughtless  of  his  own  health,  his  wife's  watch- 
ful care  prolonged  his  days  till  far  into  the 
eightieth  year.  Once  when  a  lady  friend  expressed 
the  hope  that  she  might  die  before  her  husband, 
Mrs.  Rose  replied,  "That  is  not  the  way  I  feel. 
My  greatest  fear  is  that  I  may  die  or  become 
incapacitated,  so  that  I  may  not  be  able  to  care 


Memoir  33 

for  him  and  serve  him  to  the  end."  Mercifully 
her  hope  was  granted,  and  his  last  moments  were 
brightened  by  her  presence. 


THE  RISE  OF  CONSTITUTIONAL 
LAW 

A  Paper  Read  Before  the  Pennsylvania  State  Bar  Association 
at  its  Annual  Meeting,  June  25,  1901 


THE  RISE  OF  CONSTITUTIONAL  LAW 

When  we  look  backward  over  a  few  hundred  years  the 
scene  is  generally  somewhat  blurred;  but  as  the  future 
is  still  more  vague  and  indistinct,  I  trust  that  you  will 
excuse  me  if  I  indulge  in  a  reminiscence,  and  endeavor 
to  glean  something  from  the  past;  not  a  past  that  is 
dead,  but  a  past  that  is  most  intimately  connected  with 
our  present,  and  that  must  exercise  a  very  controlling 
influence  on  the  future  for  all  time. 

When  we  are  floating  on  some  great  river  that  is 
silently  approaching  the  sea,  our  attention  is  naturally 
attracted  to  the  passing  vessels,  to  the  flitting  scenery  on 
the  shore,  the  fields,  the  trees,  the  houses,  the  villages,  all 
of  the  successive  changes  of  the  landscape,  without  ever 
thinking  of  the  far  off  fountain  in  the  wilderness  in 
which  the  mighty  stream  had  its  origin.  So  it  is  with 
our  institutions.  We  are  interested  in  their  modern 
aspects,  in  their  present  operation,  their  actual  influence 
in  our  own  day  and  time,  without  giving  much  thought 
to  the  remote  periods  in  which  they  had  their  birth. 
There  has  long  been,  however,  a  school  of  jurists  who 
have  insisted  that  the  historical  method  is  the  true  one 
to  be  applied  to  legal  studies ;  but  that  is  a  question  that 
I  do  not  care  to  enter  upon  at  this  time,  further  than 
to  suggest  their  opinion  as  an  excuse,  as  far  as  it  may 
extend,  for  what  I  shall  have  to  say  on  this  occasion. 

Our  laws,  like  our  language,  have  been  derived  from 
many  sources.  Many  of  them  can  be  traced  to  periods 
as  early  as  the  Roman  Republic;  many  were  imported 
by  our  ancestors  from  our  mother  country;  vestiges  of 

37 


38  Addresses 

the  feudal  system  have  survived  though  that  system  has 
perished;  while  other  laws  are  of  indigenous  growth; 
but  all  of  them  are  connected  in  some  way  with  a  past 
somewhat  remote,  and  with  each  other.  Let  us  take  our 
system  of  constitutional  law.  In  many  respects  it  has 
been  expanded  beyond  all  known  precedents,  so  as  to 
have  a  stamp  that  is  peculiarly  American;  nevertheless 
it  had  a  very  vigorous  origin  among  scenes  the  most 
dramatic  long  before  Columbus  set  his  sails  on  his  mem- 
orable voyage  of  discovery.  That  origin  is  not  lost  in 
the  night  of  time;  but  may  be  traced  with  an  unusual 
degree  of  certainty.  I  purpose,  with  your  kind  indul- 
gence, to  say  something  about  the  birth  of  the  principles 
of  constitutional  government  which  in  our  country  have 
attained  to  such  a  vigor  and  predominance  as  have  never 
been  known  elsewhere,  stating  some  of  the  facts  closely 
associated  with  that  event. 

If  any  of  us  had  been  living,  and  had  been  in  the 
cathedral  of  Worcester,  England,  on  the  seventeenth  day 
of  July,  1797,  he  would  have  beheld  a  strange  sight.  The 
doors  of  that  immense  building  were  closed  and  bolted 
from  within,  and  the  light,  sifting  through  richly  stained 
windows,  revealed  a  group  of  men  gathered  around  a 
tomb  of  antique  aspect  which  stood,  and  still  stands,  in 
the  choir  just  before  the  high  altar.  On  the  top  of  the 
tomb  was  the  recumbent  figure  of  a  man,  his  hands 
encased  in  jewelled  gloves,  the  palms  pressed  together 
as  if  in  prayer.  Some  of  the  men  there  present  were 
mechanics  with  hammers,  chisels  and  crow-bars,  with 
which  they  proceeded  to  prize  off  the  ponderous  covering 
of  the  tomb  of  which  the  marble  effigy  formed  a  part. 
Beneath  was  found  a  coffin,  likewise  of  marble,  broken 
across,  as  was  supposed,  long  before  that  time,  when  the 
tomb  had  been  removed  from  some  other  part  of  the 
building  for  the  purpose  of  making  repairs. 

Nearly  six  hundred  years  had  passed  away  since  King 


The  Rise  of  Constitutional  Law  39 

John  had  been  laid  to  rest  in  that  tomb,  with  an 
un  paralleled  dearth  of  tears. 

There  had  been  some  controversy  as  to  the  precise 
spot  in  the  cathedral  in  which  lay  the  body  of  John ; 
some  antiquaries  contending  that  it  lay  beneath  the 
pavement  where  the  tomb  had  formerly  rested;  a  spot 
still  marked  by  a  marble  slab;  and  others  contending 
that  John  was  buried  at  Croxton,  as  stated  by  one  old 
author.  Finally  Mr.  Green,  the  historian  of  Worcester, 
with  some  others,  obtained  the  consent  of  the  dean  and 
chapter  of  the  cathedral  that  the  tomb  might  be  opened, 
so  that  all  doubts  might  be  dispelled.  "When  the  lid  of 
the  coffin  was  lifted  it  disclosed  all  that  was  left  of  the 
dead  monarch.  A  drawing  was  made  of  the  open  tomb 
which  has  often  been  reproduced.  The  skeleton  measured 
five  feet  six  inches  in  length,  the  forehead  was  heavy 
and  narrow,  as  shown  in  all  of  the  pictures  of  John. 
The  truth  of  history  was  confirmed.  When  the  king  was 
alive,  one  of  his  ambassadors  had  said  of  him: 

"The  King  of  England  is  about  fifty  years  of  age, 
his  hair  is  quite  hoary ;  his  figure  is  made  for  strength — 
compact,  but  not  tall." 

Although  the  king's  body  had  been  embalmed  by  his 
physician,  Thomas  de  Wodestoke,  abbot  of  Caxton,  yet 
the  balsams  and  spices  had  not  availed  in  the  long  war- 
fare waged  by  the  elements;  and  the  flesh  had  disap- 
peared. The  body  had  been  clad  exactly  as  represented 
by  the  effigy  that  lies  on  the  tomb,  except  that  the  hands 
were  not  encased  in  gloves,  and  that  in  lieu  of  a  kingly 
crown  it  wore  a  monk's  cowl,  put  on  at  the  king's  dying 
request,  in  the  hope  that  it  might  scare  the  devil  away, 
or  deceive  the  keen  vision  of  the  Angel  of  the  Resurrec- 
tion. It  was  in  the  same  frame  of  mind  that  John 
requested  that  he  might  be  entombed  in  this  spot  so 
that  he  might  sleep  near  the  bodies  of  the  holy  saints 
Wulfstan  and  Oswald,  who,  as  he  trusted,  would  charit- 


40  Addresses 

ably  intercede  for  him  at  the  last  day.  By  means  of 
these  prudent  precautions  he  hoped  to  slip  along  with 
the  elect  into  the  Kingdom  of  Heaven. 

But  let  us  look  once  more,  and  see  what  he  had  left 
behind  him  in  token  of  his  mortal  life. 

The  head  having  been  slightly  elevated,  the  skull  had 
become  detached  from  the  rest  of  the  skeleton,  which 
had  been  clad  in  a  long  robe  of  crimson  damask  of  pecu- 
liarly strong  texture.  A  part  of  the  embroidery  of  the 
robe  remained  near  the  right  knee.  The  legs  were  cov- 
ered with  an  ornamental  close  dress  tied  at  the  ankles ; 
and  the  bones  of  the  feet  were  visible  through  the  decayed 
parts  of  the  drapery.  A  sword  that  had  been  clasped 
in  the  left  hand  had  been  eaten  by  rust  into  pieces, 
which  lay  scattered  down  the  same  side  of  the  body. 
The  right  hand,  which  had  become  detached,  lay  on  the 
right  thigh  of  the  skeleton. 

A  sword  that  time  had  broken  as  if  in  mockery,  a 
skull  masquerading  in  the  head-dress  of  a  monk,  a  few 
decaying  bones  and  vestments  were  the  only  visible 
remains  of  a  once  powerful  monarch,  the  greatest  enemy 
of  free  government  that  was  ever  seen  in  England.  It  is 
easy  to  conclude  that  these  vestiges  of  mortality  were 
regarded  by  those  present  with  curiosity  rather  than  with 
reverence.  Other  churches  may  contend  in  devout  rivalry 
as  to  the  respective  merits  of  saints  whose  relics,  shrines, 
or  tombs  they  possess ;  but  it  will  perhaps  be  universally 
conceded  that  the  cathedral  of  Worcester  holds  enclosed 
within  its  consecrated  precincts  one  of  the  vilest  of  the 
champions  of  wickedness. 

The  iniquities  of  John  were  so  enormous  and  so  numer- 
ous as  to  stagger  belief ;  and  some  have  been  inclined  to 
distrust  the  veracity  of  the  old  chroniclers  by  whom 
they  have  been  recounted;  yet  these  chroniclers  furnish 
most  of  the  testimony  on  which  all  of  the  histories  of 
that  period  are  based.     Many  of  the  most  atrocious 


The  Rise  of  Constitutional  Law  41 

crimes  of  John  are  perfectly  well  authenticated.  No 
one  doubts  that  he  murdered  his  young  nephew,  Arthur, 
the  rightful  heir  to  the  throne,  though  the  precise  man- 
ner in  which  the  deed  was  accomplished  may  be  open  to 
dispute.  A  long  and  most  appalling  series  of  criminal 
acts  is  equally  well  established.  To  kings  in  those  days 
much  was  forgiven ;  but  John  acquired  such  a  reputation 
in  the  popular  mind  for  depravity  and  villainy  that  in 
the  reign  of  Richard  II  the  insurgents  exacted  an  oath 
that  no  king  named  John  should  ever  sit  on  the  English 
throne.  We  may  well  conclude  that  a  monarch  that 
could  not  engage  the  services  of  a  single  apologist  was 
immune  to  all  the  virtues. 

There  is  a  class  of  men  whose  business  it  is  to  exon- 
erate and  to  justify  illustrious  scoundrels.  We  have 
been  told  that  Tiberius  Caesar  was  possessed  of  many 
virtues ;  that  he  was  rather  remarkable  for  goodness  and 
wisdom.  Walpole  thought  that  Richard  III  had  been 
much  maligned.  In  our  own  day  we  have  seen  volumes 
in  praise  of  Danton,  Robespierre  and  St.  Just ;  and  only 
within  the  last  few  months  a  life  of  Marat  has  been 
published,  intended  to  prove  that  the  Friend  of  the 
People  was  a  humane,  good  man  misunderstood;  but  no 
one,  I  believe,  has  ever  aspired  to  rehabilitate  King 
John.  The  way  is  open ;  and  here  is  a  virgin  field  for 
lovers  of  paradox.  Of  him  I  am  willing,  however,  to 
believe  anything  that  is  bad,  and  will  trust  the  old 
chroniclers,  since  they  are  not  contradicted,  and  all  they 
say  of  him  is  wholly  in  keeping  with  his  well-known 
character.  So  terrible  and  enormous  were  his  misdeeds 
that  it  has  indeed  been  suggested  that  he  was  insane; 
but  he  was  very  cunning  and  crafty  withal;  and  unfor- 
tunately a  great  amount  of  wickedness  is  not  incompat- 
ible with  saneness  of  mind.  I  will  only  mention  a  very 
few  of  the  accusations  made  against  him  by  writers  who 
knew  more  about  him  than  we  can  possibly  know. 


42  Addresses 

The  favorite  residence  of  John  was  at  Windsor.  Hav- 
ing divorced  his  first  wife,  he  brought  thither  the  fair 
Isabella,  whom  he  had  married,  after  stealing  her  from 
Guy  de  Lusignan,  to  whom  she  had  been  betrothed. 
In  the  beginning  he  displayed  an  ardent  devotion  to  his 
new  bride ;  but  he  soon  wearied  of  her  also.  Near  by  the 
Norman  Keep  is  a  chamber  made  famous  by  the  manner 
in  which  John  managed  to  vary  the  monotony  of  domes- 
tic life.  Suspecting  a  gentleman  of  the  court  of  having 
supplanted  him  in  the  queen's  affections,  he  caused  him 
and  two  others,  supposed  to  be  his  accomplices,  to  be 
assassinated;  and  that  evening  when  she  retired  to  her 
room,  not  suspecting  what  had  happened,  she  found  the 
bodies  of  these  three  victims  suspended  over  her  bed. 

John  was  prolific  in  his  devices  for  raising  money, 
including  slander  and  blackmailing ;  thus  he  shamelessly 
entered  on  his  rolls  memoranda  such  as  this:  "Robert 
de  Vaux  gave  five  of  his  best  palfreys  that  the  king  might 
hold  his  tongue  about  Henry  Pinel's  wife."  In  some 
years  he  levied  taxes  on  all  movables  of  more  than  four- 
teen per  cent.  Against  all  who  offended  him  his 
vengeance  was  swift  and  terrible.  On  one  of  his  raids 
on  the  Isle  of  Wight  he  made  it  a  rule  to  fire  every 
morning  the  house  that  had  sheltered  him  the  night 
before.  Levying  fines  on  Jews,  and  torturing  them  until 
they  surrendered  the  last  penny,  and  making  forced 
levies  on  Christians  were  regular  financial  expedients. 

If  John  was  terrible  to  his  enemies  he  was  still  more 
formidable  to  his  friends.  Among  the  latter,  bound  by 
the  strongest  ties,  was  William  de  Braose,  fourth  Lord 
of  Bramber,  to  whose  warlike  exertions  John  was  chiefly 
indebted  for  his  crown.  One  day  the  king,  being  in  need 
of  money,  a  very  common  circumstance  owing  to  his 
great  extravagance,  proposed  to  Bramber  to  sell  him 
lands  of  much  value  lying  near  Limerick  in  Ireland ;  an 
offer  which  was  unfortunately  accepted.     Discovering 


The  Rise  of  Constitutional  Law  43 

afterwards  that  John  had  no  title  to  the  lands,  Bramber 
imprudently  refused  to  pay  the  purchase  price  agreed 
upon.  The  king  at  once  made  war  on  him;  and  after 
some  bloodshed  a  truce  was  talked  of;  but  the  king 
refused  to  sanction  it  unless  his  adversary  would  sur- 
render his  son  as  a  hostage.  When  this  demand  was 
communicated  to  Maud,  Lady  Bramber,  she  refused, 
saying,  "By  my  faith,  the  king  did  not  take  such  care 
of  his  nephew  that  I  should  trust  my  child  to  his  hands ; ' ' 
referring  to  the  murder  of  young  Arthur.  The  allusion 
was  bitter,  and  bitterly  did  she  answer  for  it.  John 
proceeded  to  waste  the  lands  and  to  burn  the  castles  of 
Lord  and  Lady  Bramber.  At  last  perceiving  that  they 
were  entirely  helpless,  Lady  Bramber  sent  to  John  four 
hundred  white  cows  as  a  peace  offering;  which  were 
accepted  by  John  in  that  sullen  mood  that  characterized 
nearly  all  of  his  acts,  proposing  a  peace  on  payment  of 
an  indemnity  so  large  that  he  knew  it  to  be  impossible. 
Lady  Bramber  sought  safety  in  flight;  but  she  and  her 
son  were  captured  at  sea  just  as  they  were  nearing  the 
coast  of  France,  were  brought  back  to  England,  and 
were  thrown  into  the  Norman  Keep  at  "Windsor,  with 
no  other  provisions  but  a  sheaf  of  wheat  and  a  piece  of 
raw  pork.    Let  the  chronicler  tell  the  rest : 

"For  ten  days  they  were  left  alone.  On  the  eleventh 
day  the  bolts  were  drawn,  the  doors  thrown  open.  Mother 
and  son  were  dead.  The  young  man  had  been  the  first 
to  fail.  Seated  on  the  floor,  and  leaning  against  the  wall 
he  had  met  his  lingering  death.  His  head  was  bent  a 
little  toward  the  ground.  Maud  was  near  her  son.  She, 
too,  was  seated  on  the  floor,  her  back  against  the  wall; 
but  her  face  had  fallen  on  her  son's  broad  chest;  and 
there  she  lay  embracing  him  with  the  last  sigh  of  her 
life.  In  that  last  sigh  the  savagery  of  hunger  had  broken 
on  her  love.  His  cheek  was  gnawed.  The  mother's 
farewell  kiss  had  turned  into  a  ravenous  bite." 


44  Addresses 

Lord  Bramber  succeeded  in  making  his  escape  to 
France,  where,  it  is  said,  he  soon  afterwards  died  of  a 
broken  heart. 

It  would  seem  that  John  had  a  passion  for  starving 
his  victims  to  death.  Much  given  to  gluttony  himself, 
he  probably  considered  that  the  most  painful  punish- 
ment that  could  be  inflicted.  Some  years  before  his 
war  on  Lord  and  Lady  Bramber  he  had  starved  to  death 
twenty-two  hostages  in  Corffe  Castle. 

I  will  not  dwell  farther  on  the  long  catalogue  of  bloody 
crimes  with  which  this  dastardly  king  stained  his  hands. 
But  there  were  other  misdeeds  that  called  for  the  wrath 
of  God  and  the  avenging  fury  of  men.  With  licentious 
passions  the  king  sought  to  spread  dishonor  through 
noble  families  until  a  cry  arose  against  him  such  as  had 
been  heard  against  Appius  Claudius  at  Rome : 

"Patient  as  sheep  we  yield  us  up  unto  your  cruel  hate; 
But,  by  the  shades  beneath  us,  and  by  the  Gods  above 
Add  not  unto  your  cruel  hate  your  yet  more  cruel  love." 

I  need  mention  only  one  single  exploit  of  John  that 
contributed  most  powerfully  to  bring  him  to  judgment. 
When  the  mailed  barons  went  forth  with  all  of  their 
forces  to  settle  their  long  account  with  the  king,  Robert 
Fitz- Walter,  Baron  of  Dunmow,  rode  foremost  in  the 
van,  having  been  elected  as  their  leader  under  the  title 
of  "Marshal  of  God  and  the  Holy  Church."  Many  in 
that  band  had  some  personal  wrong  to  be  avenged ;  but 
by  common  consent  it  was  conceded  that  none  had  been 
so  deeply  wronged  as  he ;  and  in  the  tremendous  catalogue 
of  his  grievances  the  fact  that  John  had  set  fire  to  his 
castle,  the  ancestral  home  of  his  family,  and  had  burned 
it  to  the  ground,  went  for  nothing.  After  the  death  of 
John,  Fitz- Walter  was  a  broken  man.  He  went  to  Pal- 
estine and  fought  against  the  infidel  for  the  Sepulchre 
of  Christ.     We  hear  of  him  actively  engaged  at  the 


The  Rise  of  Constitutional  Law  45 

siege  of  Damietta.  In  1234  he  died ;  no  one  knows  where, 
or  from  what  cause;  but  his  tomb  may  still  be  seen  in 
Little  Dunmow  church.  Very  near  it,  and  on  the  south 
wall,  is  an  altar-shaped  tomb  on  which  is  carved  in 
alabaster  the  form  of  a  girl  of  eighteen,  richly  dressed. 
Her  figure  is  tall,  extremely  slender,  lithe  and  graceful. 
She  wears  the  head-dress  of  the  period,  fitting  closely 
over  the  brow;  and  her  tresses  are  parted  over  an  oval 
face  of  singular  sadness,  sweetness  and  beauty.  Her 
open  hands  are  held  near  together  in  an  attitude  of 
resignation  and  prayer;  but  the  unoffending  grace  that 
lights  up  every  feature  tells  that  she  had  but  few  sins 
to  be  forgiven.  Nearly  seven  hundred  years  have  gone 
since  the  maiden  gathered  daisies  in  the  English 
meadows,  and  listened  to  the  song  of  the  lark  soaring 
toward  Heaven.  Not  the  gloom  of  penitential  Lent,  nor 
the  happy  Christmas  chimes  rung  out  from  the  tower 
above,  nor  the  chants  of  the  worshippers  on  each  recur- 
ring Sunday  and  festival,  nor  the  deep  tones  of  the 
organ  that  shake  the  building  to  its  foundation  suffice 
to  rouse  the  pulse  that  seems  as  if  just  suspended. 

"The  fragrant  tresses  are  not  stirred, 
That  lie  upon  her  charmed  heart. 

She  sleeps;  on  either  hand  upswells 

The  gold-fringed  pillow,  lightly  prest. 

She  sleeps,  nor  dreams,  hut  ever  dwells 
A  perfect  form  in  perfect  rest." 

Gazing  upon  this  reclining  figure  one  might  almost 
deem  that  he  had  before  him  the  Sleeping  Beauty  of 
fable,  lying  here  while  the  centuries  are  slowly  tolled 
away  by  the  clock  in  the  tower  above,  waiting  for  the 
coming  of  the  Happy  Prince  whose  kiss  shall  waken  her 
to  life  and  love. 

The  maiden  thus  sleeping  has  been  the  theme  of  count- 
less ballads.    She  is  the  original  of  that  Maid  Marian  that 


46  Addresses 

has  walked  in  glory  through  a  thousand  romances.  Her 
history  has  often  been  reproduced  on  the  stage  in  dramas, 
with  every  variety  of  transformation  consistent  with 
the  purity  of  her  character ;  though  no  pen  save  that  of 
Shakespeare  himself  could  have  done  justice  to  her 
pathetic  fate. 

That  lady,  thus  commemorated  in  art,  history,  romance 
and  song,  was  Matilda,  the  daughter  of  that  Robert  Fitz- 
Walter,  who  with  his  good  broad  sword  rode  in  the  van 
of  the  army  of  the  barons  as  it  pursued  the  cowardly  king 
along  the  line  of  his  dastardly  retreat.  She  was  the 
light  of  his  house,  the  joy  of  his  heart.  Her  hapless  story 
is  soon  told.  Just  blooming  into  womanhood,  the  fame 
of  the  wonderful  beauty  of  Matilda  Fitz- Walter  was 
spread  abroad  in  all  the  land;  and  so  it  came  to  the 
ears  of  the  king,  who  caused  her  to  be  abducted  by  the 
ruffians  whom  he  kept  in  his  pay.  As  she  rejected  his 
advances,  she  was  confined  in  the  Tower  in  a  room  that 
is  still  shown,  next  the  roof  in  the  round  turret  standing 
on  the  northeast  angle  of  the  keep,  where,  after  an 
imprisonment  of  a  few  months,  she  was  secretly  poisoned 
by  order  of  the  king. 

We  may  wonder  how  with  so  many  misdeeds  such  a 
monster  could  have  been  permitted  to  live ;  but  it  seems 
quite  probable  that  he  was  poisoned  in  the  end;  and 
besides,  a  king  in  those  days,  defended  by  guards,  was 
also  protected  by  influences  that  were  overpowering  in 
the  minds  of  men. 

If  we  could  go  back  to  the  times  when  the  Indian 
tribes  roamed  in  these  hills  we  should  find  that  the  chief 
and  the  medicine  man  were  closely  bound  together  by 
the  ties  of  interest  and  sympathy.  The  alliance  between 
church  and  state  in  the  days  of  John  was  natural,  neces- 
sary, inevitable.  The  bishops  declared  that  the  king 
reigned  by  divine  right,  that  he  could  do  no  wrong,  that 
to  cross  him  or  resist  him  was  not  only  a  crime  but  a 


The  Rise  of  Constitutional  Law  47 

sacrilege.  When  the  king  went  to  war  it  often  happened 
that  the  bishop  gathered  his  retainers  and  went  along  to 
swell  the  royal  forces ;  and  not  unf requently  he  gave  the 
sanction  of  religion  to  some  expedition  of  rapine  and 
plunder.  In  return  the  king  granted  special  privileges 
to  ecclesiastics  and  to  monasteries,  so  that  the  clergy 
had  come  to  own  one-third  of  the  lands  of  England ;  and 
every  day  their  domains  and  revenues  increased.  If  the 
clergy  condemned  any  one  for  heresy  or  other  crime,  he 
was  turned  over  to  the  secular  arm,  and  was  in  a  kindly 
and  neighborly  way  imprisoned,  tortured,  hanged  or 
burned,  as  his  sentence  might  import.  Though  the  king's 
life  might  be  far  from  virtuous,  he  assured  his  subjects 
that  when  the  bishop  said  that  the  slightest  lapse  from 
virtue  implied  eternal  torment  unless  relieved  by  ecclesi- 
astical intervention,  he  only  uttered  a  truth  that  admitted 
of  no  doubt,  and  which  it  would  be  impious  and  fatal  to 
question.  If  this  system  had  its  defects,  it  was  perhaps 
the  only  one  that  had  any  chance  of  holding  society 
together ;  for  it  required  all  the  terrors  of  this  world  and 
of  the  next,  not  to  make  men  good,  for  that  was  beyond 
hope,  but  to  keep  them  from  lapsing  into  a  state  of  total 
depravity. 

Never  was  a  darker  period  in  history.  The  light  of 
humanity  seemed  to  be  going  out  forever.  The  social 
system  was  disorganized,  disintegrating  day  by  day.  For 
several  hundred  years  the  world  had  been  going  back- 
ward. During  that  time  not  a  scientific  or  mechanical 
discovery  had  been  made,  not  a  new  thought  produced, 
or  a  book  written  that  added  to  the  intellectual  treasures 
of  mankind.  Men  had  gone  off  on  the  wrong  track, 
devoting  the  labors  of  generations  to  alchemy,  to  astrol- 
ogy, to  dogmatic  theology.  The  splendid  literature  of 
Greece  and  Rome  had  for  the  most  part  perished.  The 
few  books  to  be  had  were  in  manuscript,  hard  to  read, 
costly  in  price ;  and  outside  of  the  clergy,  many  of  whose 


48  Addresses 

members  were  utterly  illiterate,  it  was  a  rare  thing  to 
find  a  man  that  could  write  his  name.  As  for  women, 
they  made  no  pretence  of  such  preternatural 
acquirements. 

Blood  and  carnage,  wars,  public  and  private,  were  the 
order  of  the  day.  No  books,  no  newspapers,  no  mails, 
nothing  new  in  science  or  art,  no  theatres,  concerts  or 
operas,  no  household  conveniences,  no  tolerable  roads,  or 
means  of  getting  about  with  comfort;  had  it  not  been 
for  the  privilege  of  fighting  and  killing,  ravaging  lands 
and  destroying  homes,  life  would  have  been  only  a 
lethargy,  death  a  rescue  and  a  relief. 

Society,  such  as  it  was,  was  based  on  principles  of 
universal  robbery  scientifically  developed  in  that  amazing 
piece  of  perverted  ingenuity  called  the  feudal  system; 
while  outside  the  meshes  of  feudalism  the  irrepressible 
bandit  plied  his  calling  on  every  highway.  The  outlaw, 
Robin  Hood,  popularly  supposed  to  be  the  Earl  of 
Huntington,  made  his  home  in  the  Sherwood  forest,  more 
admired  by  the  populace  than  any  man  in  England.  His 
surroundings  were  congenial;  and  he  died  a  natural 
death  at  the  age  of  84,  much  beloved,  but  not  universally 
lamented. 

Every  age  has  its  own  forms  of  insanity.  Our  own 
is  perhaps  not  unendowed  in  that  way ;  but  that  of  John 
was  prolific  in  variety.  One  universal  delusion  was  that 
it  was  the  duty  of  every  man  that  had  the  means  to  go 
to  the  ends  of  the  earth,  and  to  kill  as  many  Turks  as 
possible,  so  as  to  rescue  the  Holy  Sepulchre  from  the 
hands  of  the  infidel.  And  thus  a  million  or  so  lives 
were  sacrificed,  and  twice  the  number  were  reduced  to 
penury,  slavery  and  wretchedness.  No  period  could  be 
more  materialistic  than  that  of  John;  but  here  was 
Nature's  eternal  but  ineffectual  protest  against  mate- 
rialism, against  the  theory  that  man  can  live  by  bread 
alone.    However  oppressed  and  degraded,  men  still  clung 


The  Rise  of  Constitutional  Law  49 

to  a  higher  ideal ;  and  were  content  to  embrace  and  caress 
an  empty  phantom,  thanking  God  for  that;  and  were 
ready  to  go  off  and  fight  for  it,  and  die  for  it;  and, 
trusting  to  some  instinct  that  they  could  not  fathom, 
they  went  on  planting  lilies  in  the  slough  of  despond, 
and  erecting  the  banner  of  hope  at  the  gateway  of  the 
tomb.  Their  unselfish  enthusiasm  lent  a  certain  dignity 
to  their  madness;  but  everything  tended  to  the  support 
of  despotism,  because  the  law  is  silent  amidst  arms. 

But  finally  the  atrocities  of  John  excited  universal 
terror  that  precluded  delay.  From  out  the  heterogeneous 
elements  there  arose  a  mighty  purpose,  not  to  destroy 
the  government  in  one  giant  and  iconoclastic  effort,  a 
remedy  often  tried,  and  always  in  vain ;  but  to  reform  it, 
to  readjust  it  on  enduring  foundations. 

The  barons  of  England  were  turbulent,  much  given  to 
quarrels  and  discord,  but  loyal,  as  the  feudal  tenures 
required  them  to  be.  Nothing  but  the  iniquities  of  John, 
swollen  beyond  all  endurance,  cemented  their  union,  and 
nerved  their  arms  for  the  final  struggle. 

Not  that  all  of  the  barons  were  united.  Some  of  them 
still  adhered  to  John  and  to  his  evil  fortunes ;  and  at  the 
head  of  these  was  the  great  Earl  of  Salisbury;  but  the 
enthusiasm  that  wins  success  found  no  rallying  point 
in  the  ignoble  person  of  the  king.  At  that  time  the 
highest  title  of  nobility  in  England  was  that  of  earl, 
and  the  word  barons  was  used  to  denote  all  members  of 
the  nobility  of  whatever  rank;  but  among  those  who 
entered  into  the  revolt  against  John  were  many  men 
belonging  to  what  we  should  now  call  the  middle  class; 
men  of  lands  and  substance,  and  of  influence ;  but  having 
no  titles  in  the  peerage ;  men  who  more  than  made  up  for 
any  loss  sustained  by  reason  of  the  dissent  of  a  few  of 
the  barons. 

The  reign  of  King  John  and  the  successful  revolt 
against  his  tyranny  present  in  a  very  striking  way  the 


50  Addresses 

perplexing  interaction  of  good  and  evil.  The  most 
destructive  thunder  storm  serves  to  purify  the  air;  and 
the  rankest  soil  brings  forth  the  most  beautiful  flowers 
to  captivate  the  eye,  and  to  enrich  the  winds  with  their 
perfume.  Had  John  been  a  better  or  a  wiser  king,  the 
revolution,  delayed  through  centuries  of  suffering,  must 
have  broken  forth  at  last  with  that  devastating  energy 
that  smooths  the  way  for  the  career  of  a  Robespierre  or  a 
Danton.  But  enormous  crimes  awakened  invention. 
The  idea  of  binding  the  king  by  a  formal  contract,  the 
king,  ruling  by  divine  right,  the  king,  who  was  the 
fountain  of  honor,  and  who  could  do  no  wrong,  daring 
in  its  novelty,  was  utterly  at  war  with  all  the  precedents 
of  history,  all  of  the  traditions  of  our  race.  Unworthy 
kings  might  be  dethroned  or  slain,  to  be  followed  by 
others  as  bad,  or  perhaps  worse;  but  to  bind  the  king 
and  his  heirs  with  a  mere  parchment  assumpsit,  was  so 
like  the  drawing  out  of  a  leviathan  with  a  hook,  or  bind- 
ing Samson  with  a  packthread,  that  to  many  it  must 
have  seemed  audacity  degenerating  into  frenzy.  This 
bold  thought  probably  originated  in  the  brain  of  Stephen 
Langton,  a  name  never  to  be  mentioned  without  respect. 

Langton  was  an  Englishman;  but  the  time  and  place 
of  his  birth  have  baffled  modern  inquiry.  He  received 
his  principal  instruction  at  the  University  of  Paris, 
where  he  became  renowned  for  learning  and  ability;  so 
much  so  that,  though  a  foreigner,  he  was  made  Canon  of 
Paris,  Chancellor  of  the  University,  and  Dean  of  Rheims. 

In  1207  Langton  was  appointed  Archbishop  of  Canter- 
bury by  Pope  Innocent  III,  and  proved  to  be  a  man  of 
great  firmness  and  intrepidity  of  mind.  Profoundly 
scandalized  by  the  crimes  and  indecencies  of  John,  he 
resolved  to  curb  the  power  that  rendered  such  infamies 
possible.  He  found  somewhere  an  old  charter  of  Henry 
I,  dated  about  1100,  conceding  certain  privileges  to  his 
subjects ;  and  of  this  he  made  good  use,  though  it  did  not 


The  Rise  of  Constitutional  Law  51 

purport  to  bind  the  successors  of  that  monarch,  and 
hence  had  been  generally  forgotten.  In  the  century  and 
a  half  that  had  elapsed  since  the  time  of  the  Norman 
conquest,  the  Normans  and  the  Saxons  having  become 
thoroughly  fused  into  one  body,  there  was  a  growing 
sentiment  in  favor  of  the  restoration  of  the  liberal  and 
less  oppressive  laws  of  Edward  the  Confessor. 

A  convocation  of  the  peers  and  ecclesiastics  having  met 
in  1214  in  St.  Paul's,  Archbishop  Langton  read  the 
charter  of  Henry  I,  recounted  some  of  the  enormities  of 
John's  recent  conduct,  telling  them  that  if  they  were 
willing  to  support  this  charter  their  long  lost  liberties 
would  be  restored  in  all  of  their  original  purity  of 
character;  which,  we  are  told,  "so  animated  the  minds 
of  all  present  that  with  the  greatest  sincerity  and  joy 
they  swore  in  the  archbishop 's  presence  that  at  the  proper 
season  their  deeds  should  avouch  what  they  then 
declared;  and  that  even  unto  death  itself  they  would 
defend  those  liberties. ' '  Langton  promised  his  co-opera- 
tion and  assistance,  and  assured  the  barons  that  the 
covenant  then  made  would  reflect  honor  on  their  names 
through  successive  generations. 

It  will  be  remembered  that  on  the  23d  of  March,  1207, 
all  of  England  had  been  placed  under  an  interdict  by 
the  Pope,  that  John  was  excommunicated  by  the  same 
authority  in  November,  1209,  and  that  in  1213  the  Pope 
issued  a  bull  declaring  John  to  be  a  traitor  against  God, 
solemnly  deposing  him  from  the  realm,  absolving  all  his 
subjects  from  their  allegiance,  and  exhorting  all  Christian 
princes  and  peers  to  unite  in  dethroning  an  impious  king, 
and  in  elevating  another  more  worthy  of  the  papal 
authority.  The  clergy  had  therefore  special  reasons  for 
entering  into  a  conspiracy  against  John.  But  the  king 
perceiving  the  gathering  cloud,  made  his  submission  to 
the  Pope,  conveyed  to  him  and  his  successors  forever  the 
whole  kingdoms  of  England  and  Ireland,  receiving  them 


52  Addresses 

back  as  the  vassal  of  the  Holy  See ;  upon  which  the  Pope 
recalled  his  bulls  against  John,  and  suspended  from 
office  certain  ecclesiastics  who  had  disobeyed  the  king's 
commands. 

Langton,  far  from  being  appeased  by  this  reconcilia- 
tion, protested  against  the  concession  of  John,  and 
continued  in  his  first  resolution;  as  did  many  of  the 
clergy,  encouraged  by  his  example.  On  the  twentieth 
of  November,  1214,  he  met  the  barons  at  St.  Edmund's 
Bury,  where  a  solemn  oath  was  taken  to  preserve  the 
liberties  of  England ;  and  recourse  to  arms  was  resolved 
upon.  Destitute  of  means  for  defraying  the  expense  of 
a  war,  and  deserted  by  most  of  his  subjects,  the  king 
endeavored  to  temporize.  He  would  have  been  willing 
to  take  any  number  of  oaths ;  but  as  he  had  already  taken 
many,  and  had  violated  them  without  compunction,  no 
one  was  willing  to  accept  his  most  solemn  pledges. 

As  the  barons  advanced  the  king  retreated  from 
Oxford  to  London.  His  adversaries  having  opened  com- 
munication with  the  inhabitants  of  that  city,  followed 
with  a  large  army  in  the  footsteps  of  John;  the  city 
gates  were  thrown  open  to  them  on  the  twenty-fourth 
of  May,  and  the  king  hastened  to  shut  himself  up  in 
the  Tower,  whence,  finding  himself  helpless  in  the  midst 
of  his  subjects,  he  began  negotiations  with  the  barons, 
resulting  in  a  promise  to  meet  them  at  Runnymede  on 
the  fifth  of  June. 

The  name  Runnymede  is  derived  from  two  Saxon 
words  meaning  Council  Meadow,  because  in  the  old 
Saxon  days  it  had  been  customary  to  hold  the  great 
councils  there  from  time  immemorial.  It  is  an  island  in 
the  Thames  between  the  little  village  of  Staines  and 
Windsor,  a  meadow  of  one  hundred  and  sixty  acres, 
very  level,  and  quite  suitable  for  meetings  such  as  were 
held  there.  No  more  rural  or  peaceful  scene  could  be 
found  than  this  spot  where  the  greatest  of  all  human 


The  Rise  of  Constitutional  Law  53 

issues  was  settled  by  an  event  more  important  than  any 
battle  that  was  ever  lost  or  won. 

In  preparation  for  this  meeting  the  barons,  by  the 
aid  of  Archbishop  Langton,  had  prepared  certain  articles 
containing  a  schedule  of  the  liberties  upon  which  they 
meant  to  insist;  and  these  were  substantially  incor- 
porated in  the  Great  Charter  which  bears  date  June  15, 
1215.  The  king  had  at  first  rejected  the  offered  terms 
which  he  said  would  reduce  him  to  slavery;  but  finally 
he  succumbed. 

The  charter  was  not  signed  either  by  the  king  or  by 
the  barons;  but  was  simply  attested  by  the  royal  seal, 
as  the  custom  was  in  those  days;  though  fac  similes  of 
this  document  are  now  commonly  sold  showing  the  sig- 
natures of  the  king  and  of  the  barons,  so  as  to  render 
them  more  attractive  to  purchasers. 

For  its  better  preservation  it  was  executed  in  several 
duplicates ;  and  these  were  deposited  among  the  archives 
of  various  cathedrals.  It  mentions  as  being  present 
Langton,  Archbishop  of  Canterbury,  primate  of  all 
England,  and  Cardinal  of  the  Holy  Roman  Church,  nine 
bishops,  Master  Pandulph,  the  Pope's  Subdeacon, 
Almeric,  Master  of  the  Knights  Templar  in  England, 
several  peers  and  a  like  number  of  commoners. 

Many  of  the  abuses  denounced  by  the  Magna  Charta 
have  long  ceased  to  be  living  issues;  but  every  part  of 
it  is  interesting  as  showing  the  evil  customs  that  had 
grown  up;  though  I  only  purpose  to  mention  the  more 
important  features  of  that  celebrated  instrument. 

The  English  church  was  to  be  free,  and  to  have  her 
whole  rights  and  her  liberties  inviolable.  What  we 
should  call  the  inheritance  tax,  and  the  right  to  extraor- 
dinary aids  were  strictly  limited.  If  the  heir  was  a 
minor  he  was  to  be  exempt  from  the  inheritance  tax; 
and  the  estates  of  minors  were  protected  against  unjust 
exactions.    The  city  of  London  should  have  its  ancient 


54  Addresses 

liberties  and  its  free  customs ;  and  so  of  all  other  cities, 
burghs,  towns  and  ports.  The  courts  were  no  longer 
to  follow  the  person  of  the  king;  but  were  to  be  held 
in  a  certain  place.  Punishments  were  to  be  propor- 
tioned to  the  offence.  In  the  administration  of  the 
estates  of  deceased  persons,  relatives  and  friends  should 
be  preferred.  Horses  and  carts  should  not  be  impressed 
without  the  consent  of  the  owner ;  and  so  of  wood.  For- 
feitures for  felonies  should  last  only  a  year  and  a  day. 
There  should  be  only  one  standard  of  weights  and 
measures. 

In  those  days  if  one  was  arrested  on  any  charge,  and 
put  in  prison,  he  was  frequently  left  to  languish  there 
indefinitely,  unless  he  would  pay  liberally  for  an  early 
trial.  To  put  an  end  to  this  practice  of  blackmailing, 
the  Magna  Charta  contains  this  clause,  the  germ  of 
the  Habeas  Corpus  Act:  "Nothing  in  the  future  shall 
be  given  or  taken  for  the  writ  of  inquisition  of  life  or 
limb;  but  it  shall  be  given  without  charge,  and  not 
denied." 

As  the  bailiffs  were  an  inferior  order  of  judges  very 
obsequious  to  royal  power,  and  much  given  to  black- 
mailing, it  was  provided  that  no  bailiff  should  cause 
any  one  to  be  arrested  on  his  own  simple  affirmation, 
without  credible  witnesses  produced  for  that  purpose. 

All  merchants  should  have  safety  and  security  in 
coming  into  England  and  going  out  of  England,  whether 
traveling  by  land  or  by  water;  to  buy  and  sell  without 
any  unjust  exactions,  except  in  time  of  war;  and  even 
in  time  of  war  if  English  merchants  were  granted  safety 
in  the  enemy's  country  his  merchants  should  be  safe  in 
England.  And  all  persons  should  have  the  right  to  go 
out  of  the  kingdom,  and  to  return  at  will,  except  in 
war  for  some  short  space,  and  except  prisoners  and 
outlaws. 

The  king  was  not  to  appoint  any   judicial  officers 


The  Rise  of  Constitutional  Law  55 

"excepting  such  as  know  the  laws  of  the  land,  and  are 
well  disposed  to  observe  them." 

The  king  was  to  restore  all  lands  unjustly  seized,  and 
to  remit  all  fines  unjustly  imposed;  and  if  any  dispute 
should  arise  on  the  subject  it  was  to  be  decided  by  the 
council  of  peers. 

In  the  year  1215  no  crusade  in  favor  of  woman's 
rights  had  as  yet  been  preached ;  but  the  ladies  were  not 
forgotten. 

In  those  days  of  continuous  hard  fighting  there  were 
always  many  widows  in  the  land;  and  some  of  them 
were  rich.  Certain  astronomers  think  that  the  heat  of 
the  sun  is  kept  up  by  showers  of  meteors  that  are  always 
falling  into  it.  In  the  reign  of  John  rich  widows  were 
utilized  in  keeping  up  the  revels  of  the  court.  In  fact 
they  were  confiscated.  Given  a  rich  widow,  she  was 
commanded  to  marry  one  of  the  royal  favorites,  who  was 
to  divide  the  spoils  with  the  king.  When  the  king  and 
the  royal  favorite  had  squandered  the  widow's  estate, 
and  had  broken  her  heart,  and,  having  accomplished  her 
via  dolorosa,  she  was  dead  and  buried  in  some  spot  of 
consecrated  ground,  the  royal  favorite  was  ready  for 
another  widow;  and  this  law  of  supply  and  demand 
operated  unspent. 

To  remedy  this  evil  the  Great  Charter  provided  that 
no  widow  should  be  compelled  to  marry  while  she  was 
willing  to  live  without  a  husband. 

The  charter  farther  provided  as  follows: 

"A  widow,  after  the  death  of  her  husband,  shall  imme- 
diately and  without  hindrance  have  her  marriage  and 
her  inheritance;  nor  shall  she  give  anything  for  her 
dower,  or  for  her  marriage,  or  for  her  inheritance  which 
her  husband  and  she  held  at  the  day  of  his  death ;  and 
she  may  remain  in  her  husband's  house  forty  days  after 
his  death,  within  which  time  her  dower  shall  be 
assigned." 


56  Addresses 

No  officer  was  to  take  any  corn  or  other  goods  without 
paying  for  them  immediately. 

Courts  of  assize  were  to  be  held  four  times  a  year  in 
each  county.  And  then  the  Great  Charter  contains  such 
a  guaranty  of  personal  liberty  as  had  never  been  dreamed 
of  before: 

"No  freeman  shall  be  seized,  or  imprisoned,  or  dis- 
possessed, or  outlawed,  or  in  any  way  destroyed ;  nor  will 
we  condemn  him,  or  commit  him  to  prison,  except  by  the 
legal  judgment  of  his  peers,  or  by  the  laws  of  the  land. 
To  none  will  we  sell,  to  none  will  we  deny,  to  none  will 
we  delay  right  or  justice." 

Respecting  this  clause  Sir  Edward  Coke  says : 

"As  the  gold-finer  will  not  out  of  the  dust,  threads  or 
shreds  of  gold  let  pass  the  least  crumb,  in  respect  of 
the  excellency  of  the  metal,  so  ought  not  the  learned 
reader  to  pass  any  syllable  of  this  law,  in  respect  of  the 
excellency  of  the  matter." 

Again  he  says  that  this  clause  is  "worthy  to  be  written 
in  letters  of  gold." 

The  Magna  Charta  was  not  merely  a  covenant  between 
the  king  and  the  barons;  but  its  light  was  reflected 
through  the  whole  social  system;  for  at  the  close  of  it 
provision  is  made  in  these  words: 

"Also  all  these  customs  and  liberties  aforesaid,  which 
we  have  granted  to  be  held  in  our  kingdom,  for  so  much 
of  it  as  belongs  to  us,  all  our  subjects,  as  well  clergy  as 
laity,  shall  observe  towards  their  tenants  as  far  as  con- 
cerns them." 

The  chief  infirmity  of  the  charter  of  Henry  I  was  that 
it  possessed  no  sanction,  and  could  at  any  time  be  vio- 
lated with  impunity.  But  now  for  the  first  time  in 
history  we  have  a  charter  that  provides  remedies  for  its 
enforcement.  The  king  declares:  "But  since  we  have 
granted  all  these  things  aforesaid  for  God,  and  for  the 
amendment  of  our  kingdom,  and  for  the  better  extin- 


The  Rise  of  Constitutional  Law  57 

guishing  the  discord  which  has  arisen  between  us  and 
our  barons,  we  being  desirous  that  these  things  shall 
possess  unshaken  stability  forever,  give  and  grant  to 
them  the  security  underwritten." 

The  Charter  then  provides  that  the  barons  shall  elect 
twenty-five  representatives  who  are  to  judge  as  to  the 
infringement  of  any  of  its  covenants;  and  in  case  any 
breach  is  found,  the  king  says :  ' '  And  they,  the  twenty- 
five  barons,  with  the  community  of  the  whole  land,  shall 
distress  and  harass  us  by  all  the  ways  in  which  they  are 
able;  that  is  to  say  by  the  taking  of  our  castles,  lands 
and  possessions,  and  by  any  other  means  in  their  power, 
until  the  excess  shall  have  been  redressed  according  to 
their  verdict,  saving  harmless  our  person,  and  the  pre- 
sons  of  our  queen  and  children ;  and  when  it  hath  been 
redressed  they  shall  behave  unto  us  as  they  have  done 
before.  And  whoever  of  our  land  pleaseth  may  swear 
that  he  will  obey  the  commands  of  the  aforesaid  twenty- 
five  barons  in  accomplishing  all  the  things  aforesaid, 
and  that  with  them  he  will  harass  us  to  the  utmost  of 
his  power;  and  we  publicly  and  freely  give  leave  to 
every  one  to  swear  who  is  willing  to  swear ;  and  we  will 
never  forbid  any  to  swear.  But  all  those  of  our  land 
who  of  themselves,  and  of  their  own  accord  are  unwilling 
to  swear  to  the  twenty-five  barons  to  distress  and  harass 
us,  together  with  them,  we  will  compel  them  by  our 
command  to  swear  as  aforesaid." 

This  was  pretty  strong  language,  since  it  gave  to  the 
barons  the  right  of  judging  when  the  charter  was 
infringed,  and  the  remedy  to  be  applied.  But  this  was 
not  all.  The  barons  were  to  have  the  custody  of  the 
city  and  tower  of  London  until  the  fifteenth  of  August 
then  next  ensuing,  and  until  the  charter  should  be 
carried  into  execution. 

It  will  be  noticed  that  the  king  not  only  gave  the 
barons  power  to  distress  and  harass  him  in  case  of  infrac- 


58  Addresses 

tion  in  every  way  within  their  power,  but  commanded 
them  to  do  so,  and  commanded  all  his  subjects  to  assist 
in  the  good  work.  This  was  done  partly  for  the  purpose 
of  silencing  the  thunders  of  the  church.  When  accused 
of  sacrilege  for  having  attacked  the  Lord's  annointed 
the  barons  hoped  to  be  able  to  justify  themselves  by 
producing  the  king's  command.  The  twenty-five  were 
duly  elected ;  but  here  they  were  met  with  an  unexpected 
difficulty.  John,  who,  though  an  unmitigated  ruffian, 
was  not  wanting  in  cunning,  had  one  trump  card  left. 
Having  become  a  vassal  of  the  See  of  Rome,  he  threw 
himself  on  the  protection  of  the  Pope,  who  responded  on 
the  sixteenth  day  of  December,  1215,  by  issuing  a  bull 
annulling  the  Great  Charter  as  having  been  obtained  by 
duress,  and  excommunicating  thirty -two  of  the  insurgent 
barons,  including,  of  course,  the  twenty-five  who  had 
been  elected  as  guardians  of  the  rights  which  it  estab- 
lished. It  was  quite  true  that  the  Charter  had  been 
obtained  by  duress;  but  as  the  Norman  claim  to  the 
crown  rested  on  no  higher  or  better  title  than  right  by 
virtue  of  conquest,  honors  were  easy.  Besides,  the 
doctrine  of  duress  has  no  application  to  judgments 
resulting  from  the  arbitrament  of  the  sword. 

John  from  his  point  of  view  had  no  reason  to  be 
pleased  with  the  outcome  of  the  meeting  at  Runnymede. 
He  was  so  infuriated  that  he  resolved  to  consider  the 
Charter  as  absolutely  void.  Old  Hollinshed  tells  us 
that  after  he  had  sealed  it  "he  was  right  sorrowful  in 
his  heart,  cursed  the  mother  that  bore  him,  the  houre 
that  he  was  borne,  and  the  paps  that  gave  him  sucke, 
wishing  that  he  had  received  death  by  violence  of  sword 
or  knife,  insteade  of  natural  nourishment;  he  whetted 
his  teeth;  he  did  bite  now  on  one  staffe,  and  now  on 
another  as  he  walked;  and  oft  broke  the  same  in  pieces 
when  he  had  doone,  and  with  such  disordered  behavior 
and  furious  gestures  he  uttered  his  greafe,  in  such  sort 


The  Rise  of  Constitutional  Law  59 

that  the  noblemen  very  well  perceived  the  inclination  of 
his  inward  affection  concerning  these  things  before  the 
breaking  up  of  the  councell,  and  therefore  sore  lamented 
the  state  of  the  realm,  gessing  what  would  become  of 
his  impatience  and  displeasant  taking  of  the  matter." 

It  is  often  said  that  governments  are  not  made;  but 
that  they  make  themselves.  The  Magna  Charta,  the  first 
germ  of  constitutional  law,  the  first  step  in  the  path  of 
law  reform,  was  not  the  product  of  academic  or  phil- 
osophic leisure ;  but  it  was  a  practical  measure  of  relief 
against  evils  that  had  become  intolerable,  a  child  of  stern 
necessity;  though  subsequent  experience  has  vindicated 
the  unconscious  wisdom  that  was  born  of  despair. 

John  began  to  make  war  on  his  barons  for  the  annul- 
ment of  his  charter  soon  after  it  was  sealed,  relying 
largely  for  success  on  the  influence  of  the  papal  bull. 
Late  in  September  of  the  next  year  he  reduced  the  city 
of  Lincoln,  and  distributed  all  the  lands  of  the  barons 
lying  thereabout  among  his  followers.  He  then  marched 
toward  Lynn  where  his  supplies  were  deposited.  Thence 
he  moved  towards  Wisbeach.  He  and  his  army  safely 
crossed  the  Wash,  and  then,  looking  back,  he  saw  his 
whole  train  of  baggage  and  provisions  swept  away  by  the 
rising  tide.  In  this  disaster  he  lost  all  of  his  money, 
jewels,  regalia,  his  crown,  and  the  great  seal.  In  the 
direst  distress  he  proceeded  to  the  Cistercian  Abbey  at 
Swineshead,  where  he  contracted  some  malady,  of  which 
he  died  on  "Wednesday,  October  12,  1216,  in  the  forty- 
ninth  year  of  his  age,  after  a  reign  of  seventeen  years, 
seven  months  and  ten  days.  It  is  reported  by  some  of 
the  chroniclers  that  he  was  poisoned  by  a  monk,  who 
wished  to  rid  the  world  of  such  a  monster.  According 
to  others  he  died  from  an  act  of  gluttony;  and  the  evi- 
dence on  this  point  seems  to  be  pretty  well  balanced. 

As  I  have  mentioned  the  cathedral  at  Worcester,  and 
shall  have  to  mention  it  again  presently,  and  as  I  am 


60  Addresses 

speaking  to  an  audience  of  lawyers,  I  cannot  refrain 
from  saying  that  there  also  lies  our  old  friend  Littleton, 
whom  we  know  mostly  through  the  writings  of  Coke. 
Perhaps  a  new  edition  of  his  works,  in  their  old  Norman 
French,  would  not  sell  quite  so  extensively  as  some  of 
our  modern  novels;  yet  he  did  a  good  work  in  his  day. 
Death  makes  strange  bedfellows.  Here  lies  the  old  hard- 
working lawyer,  who  first  sought  to  explore  in  a  thorough 
manner  the  occult  mysteries  of  the  feudal  tenures,  within 
a  few  paces  of  the  last  resting  place  of  the  king  who  by 
his  crimes  laid  the  axe  to  the  root  of  the  feudal  system 
in  England.  Littleton  ceased  from  his  labors  and  entered 
upon  his  rest  in  1481. 

The  tomb  of  John  is  the  earliest  royal  monument 
ornamented  with  an  effigy  erected  in  England.  It  bears 
no  inscription;  but  in  another  part  of  the  cathedral  is 
an  old  epitaph  carved  on  a  slab  in  the  pavement,  with- 
out name  or  date,  marking  the  last  resting  place  of  some 
person  unknown,  whom  "disaster  followed  fast  and 
followed  faster,"  and  consisting  of  the  single  word 
Miserrimus.  Surely  if  epitaphs  were  negotiable  or  inter- 
changeable King  John  could  have  had  no  better  epitaph 
than  this;  for  few  men  have  had  lives  more  wretched, 
more  unloved.  David  Hume,  one  of  the  ablest  apol- 
ogists of  royalty,  has  left  behind  him  this  picture  of 
John: 

"The  character  of  this  prince  is  nothing  but  a  com- 
plication of  vices,  equally  mean  and  odious,  ruinous  to 
himself,  and  destructive  to  his  people.  Cowardice,  inac- 
tivity, folly,  levity,  licentiousness,  treachery,  ingratitude, 
tyranny  and  cruelty;  all  these  qualities  appear  too  evi- 
dently in  the  several  incidents  of  his  life  to  give  us  room 
to  suspect  that  the  disagreeable  picture  has  been  in  any 
wise  overcharged  by  the  prejudice  of  the  ancient 
historians." 

When  Nero  died,  loaded  down  with  universal  execra- 


The  Rise  of  Constitutional  Law  61 

tion,  some  one  came  in  the  night  time,  and  sprinkled 
flowers  on  his  grave.  By  some  kindly  deed  he  had 
attached  to  him  some  not  ungrateful  heart.  Of  John, 
alive  or  dead,  we  have  no  such  reminiscence ;  but  in  lieu 
thereof  the  assertion  of  his  chronicler,  who,  in  speaking 
of  his  death,  tells  us  that ' '  Hell  felt  itself  defiled  by  the 
presence  of  John." 

During  the  reign  of  the  feeble  son  and  successor  of 
John,  King  Henry  III,  the  Great  Charter  was  confirmed 
in  1216,  1224,  1236  and  1253.  In  1264  the  commons 
were  summoned  to  Parliament.  Thus  in  less  than  half 
a  century  the  Magna  Charta  brought  about  a  complete 
revolution,  and  England  entered  upon  a  new  career. 
The  Charter  revived  hope  in  human  destiny  at  a  time 
when  hope  seemed  to  be  expiring  in  universal  gloom. 

Of  the  several  duplicates  of  the  Charter  deposited  in 
the  different  cathedrals,  that  which  is  to  be  seen  in  the 
cathedral  of  Lincoln  is  said  to  be  in  the  best  state  of 
preservation.  Two  of  them  are  to  be  found  in  the  British 
Museum.  One  of  them  was  badly  scorched  by  the  fire 
that  occurred  at  Westminster  on  the  twenty-third  day 
of  October,  1731,  which  destroyed  the  building  con- 
taining the  Cottonian  and  Royal  Libraries.  It  is  a 
curious  circumstance  that  that  part  of  this  copy  which 
remains  most  legible,  and  which  is  indeed  perfectly 
legible,  is  that  portion  that  guarantees  personal  liberty 
and  trial  by  jury,  compared  by  Coke  to  the  gold  of  the 
refiner.  According  to  an  account  that  we  have,  Sir 
Robert  Cotton  discovered  this  copy  of  the  Charter  at  his 
tailor's  just  as  he  was  about  to  cut  it  up  for  a  pattern, 
and  bought  it  for  a  trifle. 

Of  all  the  triumphs  of  light  over  darkness,  the  Magna 
Charta  stands  conspicuous.  In  this  heterogeneous  world 
few  are  the  great  triumphs  that  are  not  stained  with 
blood,  and  that  do  not  bring  in  their  train  some  kind  of 
disappointment     or     disaster.       But     the     revolution 


62  Addresses 

inaugurated  by  the  Magna  Charta  was  the  greatest  and 
the  most  peaceful  that  has  ever  been  known.  No  Revo- 
lutionary Tribunal  was  established  in  Westminster  Hall, 
no  guillotine  erected  at  Charing  Cross.  The  Tower  was 
not  destroyed  by  a  howling  mob,  intent  on  murder,  to 
fix  the  date  of  an  anniversary  for  national  rejoicing. 
The  school  for  kings  endowed  at  Runnymede  has  been 
perpetuated;  it  represents  the  law,  and  is  only  terrible 
for  the  enemies  of  liberty. 

Strange  thoughts  come  to  one  that  looks  at  the  ancient 
Charter  in  the  British  Museum.  Shakespeare  puts  into 
the  mouth  of  Jack  Cade  these  words : 

"Is  not  this  a  lamentable  thing, 
That  of  the  skin  of  an  innocent  lamb  should  be  made  parchment ; 
That  parchment  being  scribbled  o'er,  should  undo  a  man?" 

So  this  parchment  on  which  the  Great  Charter  is 
written  is  the  skin  of  an  innocent  lamb  that  once  bleated 
in  the  English  fields,  which,  being  scribbled  o'er  with 
words  of  magical  import,  written  in  a  language  long 
since  dead,  while  it  brought  the  heads  of  Laud  and 
Strafford  and  Charles  to  the  block,  has  given  life  and 
hope  to  the  oppressed,  has  opened  the  prison  door  for 
the  persecuted  and  the  friendless,  and  shall  do  so  again 
for  all  generations,  world  without  end.  What  a  strange 
potency  in  this  little  sheet  of  parchment.  A  breath  of 
wind  might  blow  it  away.  But  the  head  of  the  church 
on  earth  had  invoked  the  wrath  of  heaven  upon  it,  kings 
had  renounced  it,  physical  fire  had  charred  it,  and  in 
the  irony  of  fate  a  pair  of  tailor's  shears  had  threatened 
it ;  and  yet  here  it  remains,  powerful  and  indestructible 
as  ever,  announcing  its  deathless  and  indelible  message, 
speaking  from  eternity  to  eternity.  This  little  sheet  of 
shriveled  parchment  has  revolutionized  the  history  of 
the  world.  Without  it  the  growth  of  England  and  the 
political  existence  of  America  would  never  have  been. 


The  Rise  of  Constitutional  Law  63 

If  we  confine  our  attention  to  England  alone  how 
great  has  been  the  change.  Standing  to-day  on  the 
battlements  of  the  Norman  Keep  at  Windsor  one  sees 
unrolled  before  him  a  rural  landscape  of  wide  extent, 
whose  quiet  beauty  is  not  surpassed  the  whole  world 
over.  The  castle,  gray  with  age,  is  the  most  imposing 
relic  of  the  feudal  time ;  the  home  of  the  English  sover- 
eigns for  eight  hundred  years.  Its  massive  bastions  and 
towers  produce  an  impression  of  strength,  reminding  us 
that  here  for  ages  the  principle  of  monarchy  has  sym- 
bolized itself  in  enduring  stone.  But  the  prison  beneath, 
where  Lady  Bramber  and  her  son  were  starved  to  death, 
where  a  Scottish  king  and  many  others  pined  in  captivity 
in  the  ages  gone  by,  is  tenantless ;  and  all  around  on  the 
open  lawns,  the  green  grass,  the  unfolding  flowers,  the 
waving  trees,  the  clinging  vines,  the  absence  of  military 
signs  and  emblems,  declare  that  if  this  is  the  home  of 
royalty,  it  is  the  home  of  a  royalty  that  is  no  longer  an 
object  of  dread  and  terror,  but  a  royalty  which,  however 
high,  is  peacefully  sheltered  under  the  wing  of  the  law. 
As  the  eye  wanders  where  the  gleaming  river  cleaves  its 
emerald  banks,  two  villages  are  seen  near  together,  some 
miles  away.  These  are  the  villages  of  Egham  and 
Staines.  Between  Staines  and  Windsor  the  silver  cur- 
rent of  the  river  is  seen  to  divide  so  as  to  enclose  a  small 
island,  a  gem  set  in  its  rim  of  shining  waters.  On  the 
island  a  cottage  from  which  a  column  of  white  smoke 
curls  upward  in  the  sunshine  above  a  clump  of  trees. 
Well  may  the  eye  rest  on  that  vision  with  a  sense  of 
pride  and  rapture;  for  there  the  greatest  victory  of  all 
times  was  won;  and  a  glory  hovers  over  that  field  that 
never  shone  even  on  Marathon ;  for  that  island  is  Magna 
Charta  Island,  and  the  valley  is  the  valley  of  Runny- 
mede.  Peaceful  as  it  seems  to-day,  it  was  there  that 
the  embattled  barons  marshaled  their  hosts,  and  held 
King  John  at  bay. 


64  Addresses 

The  long  series  of  councils  held  at  Runnymede,  known 
now  only  by  vague  tradition,  was  closed  when  the  barons 
dispersed.  They  had  builded  better  than  they  knew; 
and  humanity  had  been  baptized  into  a  higher  life. 
Kings  and  priests  might  say  what  they  pleased  about  the 
great  Charter;  but,  being  once  sealed,  it  entered  on  an 
independent  existence  of  its  own.  The  mighty  words 
once  spoken  could  never  be  recalled.  Henceforth  the 
Charter  was  a  part  of  man's  inalienable  inheritance. 
Generations  would  come  and  go,  but  the  work  of  the 
barons  was  like  the  Bass  Rock,  around  which  the  north- 
ern seas  may  rage  and  break  in  vain.  The  indispensable 
doctrine  of  personal  liberty  came  into  the  world  like 
Minerva  full  armed  from  the  brain  of  Jupiter.  The 
very  phrases  of  the  Great  Charter  remain  our  watch- 
words yet.  It  is  not  only  in  England  and  its  vast 
possessions,  and  in  America  that  its  stimulating  influence 
has  been  felt.  Other  nations  have  kindled  their  torches 
at  this  great  beacon  light.  It  has  built  up  many  things 
of  priceless  value,  and  has  destroyed  many  things  that 
needed  to  be  destroyed.  It  was  the  clarion  blast  that 
announced,  though  afar  off,  the  decay  and  death  of  the 
feudal  system,  the  coming  of  a  new  order  of  things, 
when  the  shackles  should  fall  from  serf  and  retainer, 
when  the  people  should  appear  on  the  scene  of  action, 
and  take  charge  of  the  helm  of  state;  and  when  the 
proudest  claim  of  baron  or  king  should  be  subordinate 
to  the  majesty  of  the  law.  It  foretold  the  day  when 
liberty  shall  be  the  birthright  of  every  child  that  is  born, 
and  when  every  man  and  woman  shall  have  the  right 
to  worship  God  according  to  the  dictates  of  conscience. 
It  inaugurated  freedom  of  speech,  and  that  reign  of  free 
institutions  which,  transplanted  to  all  parts  of  the  globe, 
have  proved  to  be  equally  well  suited  to  every  zone,  and 
to  every  climate. 

These  principles  of  the  Magna  Charta  have  been  as 


The  Rise  of  Constitutional  Law  65 

the  laws  of  Nature,  endowed  with  the  inherent  attribute 
of  self-vindication.  James  I,  reviving  the  theory  of 
John  that  the  subject  holds  life,  liberty  and  property  as 
a  mendicant  on  royal  favor,  left  this  doctrine  as  a 
precious  heritage  to  his  son,  who  in  a  vain  effort  to  apply 
the  principles  thus  inculcated,  lost  his  crown,  his  throne 
and  his  life.  James  II  sought  to  restore  the  vassalage 
of  his  subjects ;  he  found  in  Jeffreys  an  agent  that  would 
have  delighted  the  heart  of  John ;  but  the  judge  died  in 
prison,  and  James  died  a  fugitive  and  an  exile,  fed  by 
the  hand  of  charity.  George  III  laid  his  interdict  on 
the  liberties  of  the  New  World ;  the  British  empire  was 
dismembered;  and  the  king  died  "a  driveller  and  a 
show." 

And  this  thought  takes  us  back  once  more  to  the  old 
cathedral  at  Worcester.  On  the  third  day  of  September, 
1651,  a  young  man,  self-absorbed  and  anxious  in 
demeanor,  accompanied  by  two  or  three  attendants, 
entered  this  building,  and,  sweeping  by  the  tomb  of 
John,  he  hastily  ascended  to  the  tower  above.  This  was 
Prince  Charles,  afterwards  Charles  II.  From  the  sum- 
mit of  the  tower  he  beheld  the  troops  of  Cromwell  cross- 
ing the  river  on  a  bridge  of  boats ;  and  it  was  not  long 
before  the  tower  seemed  to  reel  with  the  reverberation 
of  the  opposing  artillery.  And  then  he  beheld  a  few 
hours  later  the  irresistible  Puritans  driving  the  Royalists 
on  their  last  retreat  through  the  lanes  and  streets  of  the 
city.  Descending  from  his  lofty  perch  he  endeavored  to 
rally  them ;  but  in  vain.  Under  the  shadow  of  the  cathe- 
dral where  his  unworthy  ancestor  had  been  sleeping 
for  centuries,  seeing  that  the  die  was  cast,  he  exclaimed, 
"I  would  rather  that  you  would  shoot  me  than  to  let  me 
live  to  see  the  sad  consequences  of  this  day."  He  was 
at  last  to  be  King  of  England,  not  by  right  of  conquest, 
but  only  with  the  consent  of  her  people,  with  not  a 
single  word  of  the  Great  Charter  effaced. 


66  Addresses 

The  barons  did  not  content  themselves  with  a  mere 
announcement  of  legal  formulas.  Their  supervisory 
council  of  twenty-five  men  was  intended  for  temporary 
emergencies;  but  as  if  by  inspiration  they  decreed  the 
perpetuity  and  inviolability  of  trial  by  jury,  trusting 
in  the  natural  instinct  of  self-preservation  in  the  popular 
mind  as  the  best  and  most  effectual  guaranty  of  liberty. 

Freedom  of  speech  and  freedom  of  action  are  so 
closely  allied  that  when  one  is  stricken  down  the  other 
cannot  long  survive.  The  last  effort  to  inflict  an 
immedicable  wound  on  the  Magna  Charta  was  in  the 
early  part  of  the  last  century,  when  it  was  sought  to 
paralyze  the  functions  of  the  jury  in  libel  cases  by 
withholding  from  it  the  most  material  question  to  be 
considered;  and  Lord  Ellenborough  was  commissioned 
to  carry  out  the  scheme,  which  he  entered  upon  with 
great  spirit  and  resolution.  When  Home  Tooke  was 
brought  before  him  charged  with  libel,  the  accused  took 
high  ground,  saying  to  the  jury: 

"There  are  three  efficient  parties  engaged  in  this 
trial — you,  gentlemen  of  the  jury,  the  public  prosecutor, 
and  myself;  and  I  make  no  doubt  that  we  shall  bring  it 
to  a  satisfactory  conclusion.  As  for  the  judge  and  crier, 
they  are  here  to  preserve  order.  We  pay  them  hand- 
somely for  their  attendance;  and  in  their  sphere  they 
are  of  some  use;  but  they  are  hired  as  assistants  only. 
They  are  not,  and  never  were,  intended  to  be  controllers 
of  your  conduct." 

The  judge,  in  order  to  obtain  a  conviction,  cajoled 
and  browbeat  counsel,  witnesses,  prisoners  and  jurors 
by  turns;  but  all  in  vain.  The  prosecution  failed  as 
that  of  the  Seven  Bishops  had  failed  in  the  reign  of 
James  II,  and  the  public  acclaim  in  all  the  streets 
announced  the  popular  rejoicing. 

Bishop  Turner  accompanied  Lord  Ellenborough  home 
in  his  carriage  that  evening,  the  twenty-first   day  of 


The  Rise  of  Constitutional  Law  67 

December,  1817.  In  order  that  it  might  appear  that  he 
did  not  feel  any  mortification  on  account  of  his  own 
defeat,  and  that  of  the  ministry,  the  judge,  with  an  air 
of  indifference  for  the  hilarity  of  the  passing  throngs, 
stopped  his  carriage  in  the  Strand  to  buy  six  red  her- 
rings. But  six  red  herrings  are  a  poor  consolation  for 
wounded  pride  and  a  troubled  soul.  Lord  Ellenborough 
could  not  again  look  in  the  face  the  people  whose  liber- 
ties he  had  vainly  attacked.  The  sounds  of  the  ensuing 
Christmas  rejoicings  fell  discordant  on  his  ears.  In  the 
street,  in  the  forum,  in  the  lecture  room,  in  the  pulpit, 
in  the  press,  freedom  of  speech  remained  unimpaired. 
Lord  Ellenborough  sent  in  his  resignation,  and  not  long 
afterwards  died  of  vexation  and  chagrin. 

The  Great  Charter  was  again  victorious.  Priests  and 
kings,  ministers  and  judges,  had  conspired  against  it 
without  success.  They  might  as  well  have  tried  to  roll 
the  world  back  to  primeval  chaos.  Lord  Coke  tells  us 
that  before  his  time  the  Magna  Charta  "had  been  con- 
firmed, established  and  commanded  to  be  put  in  force 
by  no  less  than  thirty-two  several  acts  of  Parliament;" 
and  up  to  this  day  no  one  has  ever  proposed  to  repeal  a 
single  one  of  its  provisions. 
In  speaking  of  the  Great  Charter  Mr.  Hallam  says: 
"The  constitution  of  England  has  indeed  no  single 
date  from  which  its  duration  may  be  reckoned.  The 
institutions  of  positive  law,  the  far  more  important 
changes  which  time  has  wrought  in  the  order  of  society 
during  six  hundred  years  subsequent  to  the  Great  Char- 
ter, have  undoubtedly  lessened  its  direct  application  to 
our  present  circumstances.  But  it  is  still  the  keystone 
of  English  liberty.  All  that  has  since  been  obtained  is 
little  more  than  confirmation  or  commentary;  and  if 
every  subsequent  law  were  to  be  swept  away,  there 
would  still  remain  the  bold  features  that  distinguish 
a  free  from  a  despotic  monarchy." 


68  Addresses 

In  the  House  of  Lords  on  the  ninth  day  of  January, 
1770,  the  great  Earl  of  Chatham,  in  speaking  of  the 
barons,  said: 

"My  lords,  I  think  that  history  has  not  done  justice  to 
their  conduct  when  they  obtained  from  their  sovereign 
that  great  acknowledgment  of  natural  rights  contained 
in  Magna  Charta.  They  did  not  say  these  are  the  rights 
of  the  great  barons,  or  these  are  the  rights  of  the  great 
prelates.  No,  my  lords,  they  said  in  the  simple  Latin 
of  the  time  Nullus  Liber  Homo,  and  provided  as  care- 
fully for  the  meanest  subject  as  for  the  greatest.  These 
are  uncouth  words,  and  sound  but  poorly  in  the  ears  of 
scholars;  neither  are  they  addressed  to  the  criticism  of 
scholars;  but  to  the  hearts  of  freemen.  These  three 
words,  Nullus  Liber  Homo,  have  a  meaning  which 
interests  us  all;  they  deserve  to  be  remembered;  they 
deserve  to  be  inculcated  in  our  minds;  they  are  worth 
all  the  classics." 

William  Pitt,  in  1782,  in  speaking  of  the  ill-advised 
and  disastrous  war  of  Great  Britain  against  the  Amer- 
ican colonies,  referring  to  the  Magna  Charta,  said  that 
' '  every  free  state  to  maintain  its  liberty  and  the  vigor  of 
its  constitution  must  frequently  be  brought  back  to  its 
original  principles."  The  Great  Charter  remains  our 
exemplar  yet. 

No  one  can  sum  up  the  debt  that  we  owe  to  the  Magna 
Charta,  the  one  great  product  of  the  Middle  Ages.  We 
look  back  with  feelings  of  aversion  and  pity  to  that 
dark  and  troubled  period;  to  its  insane  crusades,  to  its 
fanatical  intolerance,  to  its  pedantic  and  barren  litera- 
ture, to  its  scholastic  disputes,  to  its  cruelty,  rapine  and 
bloodshed.  But  the  genius  that  presides  over  human 
destiny  never  sleeps;  and  it  was  precisely  in  that  most 
sterile  and  unpromising  age  that  the  groundwork  was 
laid  for  all  that  is  valuable  in  modern  civilization.  As 
an  unborn  forest  sleeps  unconsciously  in  an  acorn  cup. 


The  Rise  of  Constitutional  Law  69 

all  the  creations  and  all  the  potentialities  of  that  civiliza- 
tion lay  enfolded  in  the  guaranty  of  personal  liberty  and 
of  the  supremacy  of  the  law  that  was  secured  at  Runny- 
mede.  The  various  bills  and  petitions  of  right,  and  the 
Habeas  Corpus  Act,  while  they  have  given  new  sanctions 
to  liberty,  are  but  echoes  of  the  Great  Charter ;  and  our 
Declaration  of  Independence  is  but  the  Magna  Charta 
writ  large,  and  expanded  to  meet  the  wants  of  a  new 
generation  of  freemen,  fighting  the  battle  of  life  beneath 
other  skies. 

"Worth  all  the  classics!"  Yes,  the  classics  that  have 
survived,  and  the  classics  that  have  perished.  Dear  as 
might  be  to  us  the  lost  books  of  Livy,  whose  pictured 
page  is  torn,  just  where  its  highest  interest  begins,  or 
even  some  song  of  Homer,  which,  now  lost  in  space, 
shall  charm  the  ear  and  bewitch  the  human  heart  no 
more,  we  could  not  exchange  for  them  a  single  word  of 
those  uncouth  but  grand  old  sentences,  which,  having 
taken  the  wings  of  the  morning,  have  incorporated 
themselves  with  almost  every  system  of  laws  in  Christen- 
dom, and  which  still  ring  out  in  our  American  constitu- 
tions with  a  sound  like  that  of  the  trampling  of  armed 
men,  marching  confidently  up  to  battle;  words  which 
for  ages  have  stayed  the  hand  of  tyranny,  and  which 
have  extended  their  protection  over  the  infant  sleeping 
in  its  cradle,  over  the  lonely,  the  desolate,  the  sorrowful 
and  the  oppressed.  Uttered  by  unwilling  lips,  and 
believed  by  the  wretch  from  whom  it  was  extorted  that 
it  had  scarcely  an  hour  to  live,  the  Magna  Charta  marks 
an  epoch  in  the  annals  of  mankind.  It  began  a  revolu- 
tion that  has  never  gone  backward  for  a  single  moment ; 
and  was  the  precursor  of  that  civilization  the  dawn  of 
which  our  eyes  have  looked  upon  with  joy  and  pride, 
and  whose  full  meridian  splendor  can  be  foreseen  by 
God  alone. 


CONCERNING  LAW  REFORM 
COKE  AND  BACON 

Address  Delivered  Before  the  State  Bar  Association  of  Virginia, 
at  Old  Point  Comfort,  on  the  Evening  of  July  16,  1896 


CONCERNING  LAW  REFORM 
COKE  AND  BACON 

Sir  Edward  Coke  used  to  say:  "If  I  am  asked  a 
question  of  common  law,  I  should  be  ashamed  if  I  could 
not  immediately  answer  it;  but  if  I  am  asked  a  ques- 
tion of  statute  law,  I  should  be  ashamed  to  answer  it 
without  referring  to  the  statute  books." 

If  any  one  ever  knew  all  about  the  common  law,  Coke 
was  undoubtedly  the  man.  With  a  constitution  that 
was  proof  against  illness  and  fatigue,  with  a  memory 
that  never  relaxed  its  grasp,  he  gave  to  the  study  of  the 
common  law  all  his  available  time  and  energy  from  his 
youth  until  he  died  in  extreme  old  age.  His  learning, 
vast  but  not  varied,  began  and  ended  with  the  common 
law,  for  which  he  entertained  feelings  of  reverence 
amounting  to  fanaticism.  He  said  that  there  were  rules 
of  the  law  for  which  no  reason  could  be  given;  a  cir- 
cumstance that  in  his  eyes  clothed  them  with  a  myste- 
rious sanction,  and  conferred  on  them  an  additional 
value.  A  mere  dry  legist,  he  cared  more  for  the  six 
carpenters  than  he  did  for  the  seven  sages  of  Greece. 
Possessing  not  the  slightest  tincture  of  general  litera- 
ture, scorning  all  foreign  systems  of  law,  as  well  as  the 
philosophy  of  law  in  general,  which  he  considered  to  be 
matters  wholly  irrelevant  and  speculative,  he  was  per- 
fectly at  home  with  executory  devises,  contingent 
remainders,  shifting  and  springing  uses,  and  all  the 
other  technical  creations  of  the  law  of  tenures,  which 
made  up  a  great  part  of  the  common  law.  One  could 
easily  fancy  that  he  lisped  of  these  things  in  his  cradle, 
and  that  they  peopled  his  dreams  in  later  life.  They 
were  to  him  as  household  words ;  and  he  knew  all  of  their 
playful  ways  and  cunning  habits.    Few  men  could  say  as 

73 


74  Addresses 

much ;  for  that  kind  of  learning  was  extremely  technical 
and  difficult;  and  Coke's  pre-eminence  in  this  respect 
was  universally  conceded.  Chance  and  circumstance  had 
had  much  to  do  with  the  development  of  the  law  of 
tenures;  but  selfishness  and  perversity  had  operated  to 
render  it  so  artificial  and  intricate  that  many  of  its 
complications  tasked  or  eluded  the  most  highly  trained 
intellects;  a  fact  of  which  Coke  at  one  time  furnished 
a  most  striking  illustration. 

It  is  well  known  that  Coke  was  consumed  with  ambi- 
tion, and  with  avarice.  Twice  he  increased  his  estate 
by  rich  marriages;  and  the  emoluments  derived  from 
his  practice  were  so  great  that  by  the  time  he  got  to  be 
chief  justice  of  the  Court  of  King's  Bench  he  was  one 
of  the  largest  land  owners  and  one  of  the  wealthiest  men 
in  England.  Hoping  after  his  downfall  that  through 
the  influence  of  the  King's  favorite  he  might  be  restored 
to  power  and  position,  he  forced  his  daughter  to  marry 
Sir  John  Villiers,  the  brother  of  the  Duke  of  Bucking- 
ham, preparatory  to  which  union  he  drew  up  a  settle- 
ment by  which  he  settled  a  large  estate  on  the  ill-assorted 
couple.  Of  course  such  documents  were  closely  scrutin- 
ized; and  the  all-powerful  and  intriguing  family  of 
Buckingham  must  on  this  important  occasion  have  had 
the  aid  of  as  good  lawyers  and  conveyancers  as  could 
be  found;  but  when,  years  after  the  death  of  Coke,  the 
terms  of  the  settlement  were  spelled  out  with  the  labor 
that  is  required  to  decipher  an  Assyrian  tablet,  it  was 
discovered,  to  the  surprise  and  admiration  of  lawyers 
deeply  versed  in  the  technical  learning  of  feudal  tenures, 
that  the  title  to  the  estate,  after  performing  various 
unexpected  and  extraordinary  feats,  had  at  last  vested 
in  fee  simple  in  the  right  heirs  of  Sir  Edward  Coke; 
where  it  still  remains.* 


•For  an  explanation  of  the  method  by  which  this  was  done,  see 
2  Wash.  Real  Estate,  294. 


Concerning  Law  Reform  75 

It  is  needless  to  say  that  Coke  was  not  a  reformer. 
His  object  was  to  perpetuate,  and  not  to  change.  Indeed 
reform  was  not  the  order  of  the  day.  It  is  difficult  for 
us  now  to  picture  his  immediate  surroundings.  All  the 
English  speaking  people  in  the  world  in  his  time  did 
not  equal  the  present  population  of  the  State  of  New 
York;  and  London,  a  town  of  the  Middle  Ages,  dim, 
dingy,  unlighted,  uncared  for,  with  its  picturesque  con- 
trasts between  royal  pageantry  and  squalid  poverty, 
contained  at  that  time  probably  not  more  than  300,000 
inhabitants,  crowded  down  close  to  the  river  under  the 
shadow  of  the  Tower.  The  irregular  and  badly  paved 
streets,  the  rows  of  ancient  houses  in  every  stage  of 
decay,  whose  monotony  was  broken  here  and  there  by  a 
church  or  a  residence  of  more  pretensions,  presented  a 
prospect  that  was  not  suggestive  of  impending  change. 
Things  were  much  as  they  were  in  the  days  of  the 
Plantagenets ;  and  they  would  probably  so  continue. 
As  a  lawyer,  the  owner  of  many  broad  acres,  and  with 
such  surroundings,  it  was  not  surprising  that  Coke 
should  favor  the  established  order  of  things. 

If  we  look  back  to  the  Elizabethan  period  we  shall 
find  that  the  connection  then  existing  with  antiquity 
was  close  and  intimate.  Whoever  was  educated  at  all 
could  read  Homer  and  Plato  in  the  original,  and  could 
speak  Latin,  the  common  medium  of  communication 
between  persons  of  cultivation  all  over  the  world.  A 
slavish  adulation  of  antiquity  was  the  most  prominent 
feature  of  the  civilization  of  the  age.  There  was  a  pre- 
vailing bigotry  on  the  subject  that  could  only  be  com- 
pared with  the  ancestor  worship  of  the  Chinese.  Pierre 
la  Ramee,  a  contemporary  of  Coke,  a  scholar,  a  virtuous 
and  an  honorable  man,  was  persecuted  all  his  life,  and 
was  finally  assassinated,  because  he  ventured  to  dispute 
some  of  the  theorems  of  Aristotle.  Giordano  Bruno,  the 
friend  of  Sir  Philip  Sidney,  who  visited  England  when 


76  Addresses 

Bacon  was  a  student  at  Gray's  Inn,  and  whom  Bacon 
must  have  known,  followed  in  the  footsteps  of  la  Ramee, 
and  suffered  a  like  fate.  He  has  left  on  record  his 
opinion  of  the  course  of  teaching  then  in  use  in  the 
English  universities.  "Rhetoric,  or  rather  the  art  of 
declamation, ' '  he  said,  ' '  is  their  whole  study ;  and  all  the 
philosophy  of  the  universities  consists  of  a  purely  tech- 
nical knowledge  of  the  Organon  of  Aristotle;  and  for 
every  violation  of  its  rules,  a  fine  of  five  shillings  is 
imposed. '  '* 

Outside  of  theological  writings,  where  there  was  an 
occasional  mention  of  the  millenium,  and  outside  of  the 
writings  of  Bacon,  there  was  never  any  expression  of 
hope  as  to  the  future  of  our  race;  not  even  in  the 
writings  of  Shakespeare,  in  which  almost  everything  else 
can  be  found.  The  work  of  the  world  seemed  to  have 
been  done,  and  Time  to  be  leaning  on  his  scythe.  Schol- 
astics still  continued  languidly  their  war  of  words. 
Nowhere  did  the  spell  of  antiquity  lie  heavier  upon  the 
minds  of  men  than  in  England.  We  have  the  most 
abundant  evidence  of  the  fact  that  the  spoken  language 
of  the  time  differed  only  very  slightly  from  that  which 
we  speak  to-day;  but  the  written  language  was  com- 
monly so  affectedly  archaic  that  if  Coke  or  Bacon  or 
Selden  had  given  a  written  order  for  a  dozen  of  eggs 
from  a  neighboring  grocer's,  he  would  have  done  so  in 
language  such  as  was  used  200  years  before. 

Coke  was  a  tall,  fine  looking,  handsome  man,  a  man 
of  imposing  aspect,  strong  in  body,  strong  in  mind.  His 
form  and  features  have  been  so  happily  preserved  for  us 
by  the  art  of  the  painter,  his  character  has  been  so 
clearly  portrayed  by  contemporaries,  that  we  seem  to  see 
him  as  he  appeared  as  attorney  general  on  his  way  to 
Westminster  to  browbeat  Raleigh,  or  to  bully  some  other 


•Giordano  Bruno  par  Christian  Bertholmess,  Paris  1846,  p.  102. 


Concerning  Law  Reform  77 

hapless  prisoner,  who  was  denied  the  benefit  of  counsel, 
and  who,  single  handed,  could  ill  withstand  the  torrent 
of  vituperation  and  abuse  which  were  poured  out  on  him 
by  the  prosecution,  or  again  as  he  appeared  on  his  fre- 
quent way  to  the  Tower  to  examine  prisoners  subjected 
to  torture.  On  such  occasions  he  walked  very  erect, 
with  an  air  of  extreme  self-reliance  bordering  on  arro- 
gance. A  vigorous,  pompous  man  that  never  deflated, 
masterful  and  abounding  in  resources,  he  was  dogmatic, 
proud,  revengeful,  aggressive,  rude,  dictatorial,  peremp- 
tory, cruel,  obstinate,  unforgiving  and  tyrannical,  a  man 
far  better  suited  to  excite  fear  than  love.  A  terrible 
reminder  of  him  is  extant  in  several  volumes  of  exami- 
nations of  prisoners  taken  "before  torture,  during  tor- 
ture, between  torture,  and  after  torture,"  amid  what 
cries  and  howlings  we  know  not,  all  in  his  well  known 
handwriting. 

Coke  was  unquestionably  a  man  of  distinguished 
ability,  and  of  great  learning  in  his  particular  specialty ; 
but  as  he  thus  passed  along  the  streets  of  London  and 
Westminster,  he  often  met  two  men  so  immensely  supe- 
rior to  himself  in  point  of  intellect  as  to  render  com- 
parison absurd;  two  men  each  of  whom  has  formed  an 
epoch  in  the  history  of  human  thought ;  Shakespeare,  of 
whose  life  we  know  almost  nothing,  and  Bacon,  of  whose 
life  we  know  too  much.  One  of  these  he  hated,  the 
other  he  despised. 

It  is  quite  impossible  that  Coke  should  not  have  known 
Shakespeare  by  sight;  though  it  is  extremely  improb- 
able that  he  ever  spoke  to  one  whom  he  regarded  as  an 
idler  and  a  reprobate,  and  whose  manuscripts  he  would 
gladly  have  tossed  in  the  fire.  His  custom,  when  he 
became  chief  justice  of  the  Court  of  King's  Bench,  was 
to  charge  the  grand  juries  that  all  players  should  be 
punished  as  vagrants ;  that  is,  that  they  should  be  placed 
in  the  stocks,  and  whipped  from  tithing  to  tithing.    Yet 


78  Addresses 

this  man,  who  had  probably  never  seen  a  play,  was  not 
a  Puritan;  he  was  only  by  nature  hard,  stern,  unimagi- 
native and  austere,  a  man  of  the  type  of  the  unbending 
Pharisee.  For  this  and  for  many  other  reasons  Coke 
has  received  but  little  mercy  at  the  hands  of  lay  his- 
torians and  biographers.  As  he  never  spared  others  so 
they  have  not  spared  him.  Macaulay,  in  speaking  of 
Coke's  marriage  with  his  second  wife,  Lady  Hatton, 
rejoices  to  know  that  "she  did  her  best  to  make  that 
bad  man  as  miserable  as  he  deserved  to  be. '  '*  His  great 
enemy,  Bacon,  appreciated  the  value  of  her  services. 
When  he  came  to  die  he  left  her  a  legacy  in  his  will. 

With  lawyers,  Coke  has  fared  far  better  than  with 
laymen.  He  was  not  altogether  a  bad  man,  as  Macaulay 
would  have  us  believe ;  and  if  we  had  to  make  a  critical 
estimate  of  his  character  we  should  be  compelled  to  vote 
on  him  by  sections.    He  was 

" like  the  toad,  which,  ugly  and  venomous, 

Wears  yet  a  precious  jewel  in  its  head." 

One  of  the  things  that  is  most  highly  prized  by 
lawyers  is  an  able,  learned,  unbiased,  fearless  and  inde- 
pendent judiciary;  having  the  qualities  that  Coke  un- 
doubtedly possessed,  as  conceded  by  his  enemies,  and 
even  by  Bacon  himself. 

One  of  his  odious  characteristics  was  his  extreme 
pedantry;  for  he  was  the  greatest  pedant  of  a  pedantic 
age.  When,  after  having  been  chosen  speaker  of  the 
House  of  Commons,  he  was  presented  at  the  bar  before 
Queen  Elizabeth  for  her  approbation,  he  began  his 
address  in  this  delicate  and  pleasing  vein : 

"As  in  the  heavens  a  star  is  but  opacum  corpus  until 
it  hath  received  light  from  the  sun,  so  stand  I  corpus 
opacum,  a  mute  body,  until  your  highness'  bright  shining 
hath  looked  upon  and  allowed  me." 


'Essay  on  Bacon. 


Concerning  Law  Reform  79 

Much  more  followed  of  the  same  sort.  Why  it  was 
that  the  earth  did  not  immediately  open  and  swallow 
him  up,  is  a  mystery  that  has  never  been  satisfactorily 
explained. 

But  we  lawyers  remember  another  scene  in  which  Coke 
appeared  to  more  advantage,  a  moment  when  he  nobly 
cast  to  the  winds  the  honors  and  emoluments  of  office, 
and  all  the  benefits  to  be  derived  from  royal  favor, 
at  a  time  when  royal  favor  and  royal  resentment  were 
well  nigh  omnipotent.  "When  James  I.,  called  in  those 
days  the  "Solomon  of  the  North,"  having  resolved  to 
finish  the  work  of  subjecting  the  English  people  to 
slavery  so  nearly  accomplished  by  the  Tudors,  and 
having  the  twelve  judges  on  their  knees  before  him, 
asked  them  whether  in  the  future  they  would  not  refuse 
to  decide  anything  adverse  to  the  royal  prerogative,  upon 
which  eleven  of  them  answered  in  a  chorus  "Yes";  in 
that  critical  juncture  Sir  Edward  Coke,  forgetting  to 
chop  Latin,  and  talking  as  good  Anglo-Saxon  as  ever 
yet  man  spoke,  answered  with  sublime  simplicity,  and 
in  words  that  are  immortal:  "When  the  case  happens 
I  shall  do  that  which  shall  be  fit  for  a  judge  to  do." 
We  remember  too  how,  when  obsequious  deference  to 
kingly  power  was  almost  universally  prevalent,  after 
years  of  striving  against  adverse  circumstances,  he  at 
last  got  through  the  Parliament  that  "Petition  of 
Rights"  which  finally  stayed  the  exactions  of  the 
Stuarts,  and  placed  English  liberty  upon  an  imperish- 
able foundation.  Remembering  these  things,  remember- 
ing also  that  Coke's  is  still  the  greatest  name  in  the 
history  of  our  jurisprudence,  that  he  has  been  quoted 
a  hundred  times  where  any  other  judge  or  law  writer 
has  been  quoted  once,  recalling  also  the  fine  expiatory 
discipline  of  Lady  Hatton,  we  are  disposed  to  forgive 
him  all  his  sins. 

Coke,   who   had  resolved  to   know  nothing   but   the 


80  Addresses 

law,  and  the  common  law  at  that,  and  Bacon,  who  had 
taken  all  knowledge  for  his  province,  seemed  to  have 
been  born  to  be  enemies.  Coke  often  scoffed  at  the  wide 
and  miscellaneous  learning  of  Bacon,  who  in  his  turn 
was  exasperated  by  the  narrowness  and  bigotry  of  Coke. 
It  was  not  difficult  to  make  an  enemy  of  Coke;  but 
Bacon  was  an  agreeable  person,  learned,  witty,  wise,  an 
entertaining  and  instructive  companion,  a  forcible  and 
persuasive  speaker,  by  temperament  bland,  affable,  chari- 
table, liberal  and  conciliatory.  Excepting  Coke  it  would 
seem  that  he  never  hated  anybody;  but  the  gratuitous 
insults  and  contumely  publicly  and  repeatedly  bestowed 
on  him  by  Coke  finally  stirred  up  in  him  a  sentiment  of 
hatred  that  was  foreign  to  his  tolerant  nature,  a  feeling 
of  hostility  that  afterwards  never  slept.  They  were 
rivals  in  everything,  even  in  love ;  if  a  headlong  steeple- 
chase for  the  hand  of  a  rich  widow  can  be  called  by  that 
name;  and  neither  of  them  ever  asked  for  quarter,  or 
made  the  slightest  concession.  History  hardly  presents 
another  example  of  individual  hostility  so  deeply  seated, 
so  unremitting,  so  long  continued.  No  feud  of  the  Capu- 
lets  and  the  Montagues  or  of  the  Guelphs  and  the 
Ghibelines  ever  developed  more  ill  will.  It  seems  a  pity 
that  these  two  extraordinary  men  should  have  been  con- 
temporaries; for  without  the  other  either  might  have 
had  all  the  wealth  and  honors  to  which  they  both  aspired 
with  all  the  zeal  which  ambition  and  avarice  could  breed. 
As  it  was  their  antagonism  embittered  and  blasted  the 
life  of  each.  It  was  largely  through  the  influence  of 
Bacon  that  Coke  was  stripped  of  the  ermine,  and  con- 
signed to  the  Tower,  where  he  had  been  times  without 
number  to  see  the  rack  and  the  thumb-screw  applied  to 
the  helpless  victims  of  the  law.  The  gloomy  structure 
must  have  had  a  strangely  familiar  look  to  him  when 
the  huge  iron  doors  closed  upon  him.  But  his  day  of 
triumph  came  when  he  helped  to  drag  Bacon  from  the 


Concerning  Law  Reform  81 

woolsack,  and  to  stamp  on  his  brow  the  indelible  mark 
of  infamy. 

It  has  been  said  that  every  man  is,  consciously  or 
unconsciously,  a  follower  of  either  Aristotle  or  of  Plato ; 
but  Bacon  was  not  a  disciple  of  either.  With  that  fine 
comprehensive  glance  which  enabled  him  to  dispose  of 
a  whole  system  in  a  few  words,  he  said  that  Plato  subor- 
dinated the  universe  to  thought,  while  Aristotle  subordi- 
nated it  to  words.  With  Bacon  the  universe  stood  not 
solely  for  either  intellect  or  for  logic;  but  every  phe- 
nomenon required  a  separate  and  an  unbiased  study  for 
itself.  Only  by  the  evidence  of  the  senses,  painfully 
and  laboriously  employed  in  every  possible  direction, 
could  the  secrets  of  the  sphynx  be  discovered.  Bacon 
was  the  first  and  the  greatest  of  the  moderns.  Without 
assistance  he  closed  the  record  of  the  past,  and  raised 
the  curtain  upon  the  modern  world.  The  phrase  "the 
interpretation  of  nature"  was  invented  by  him  to  denote 
a  process  seemingly  the  most  obvious  of  all;  but  which 
was  the  last  thing  thought  of.  Of  all  the  ancients  he 
most  closely  resembled  Socrates,  who  had  indeed  told 
men  that  their  generalizations  were  based  on  no  accu- 
rate knowledge.  But  Socrates  confined  the  field  of  his 
inquiries  to  questions  of  intellect  and  of  morals;  by 
which  unfortunate  limitation  he  delayed  the  progress  of 
civilization  for  more  than  2,000  years. 

In  1592,  when  Bacon  was  31  years  of  age,  he  pro- 
posed in  the  House  of  Commons  a  plan  to  amend,  con- 
solidate and  condense  the  whole  body  of  English  laws, 
to  reduce  them  in  bulk,  to  simplify  them  in  form,  and 
to  render  them  consistent,  leaving  out  all  repetitions  and 
whatever  was  obsolete. 

Coke,  who  was  nine  years  older  than  Bacon,  and  was 
also  in  Parliament  at  that  time,  was  in  the  plenitude 
of  his  powers,  and  had  almost  reached  the  meridian  of 
his  fame.     No  proposition  could  have  been  made   to 


82  Addresses 

which  he  would  have  heen  more  averse.  Coming  from 
any  one  it  would  have  been  odious;  coming  from  Bacon 
it  was  detestable.  Everything  was  a  mystery  in  those 
days,  even  the  making  of  shoes  and  hats;  and  it  was 
due  to  the  dignity  of  the  law  that  it  should  be  the 
greatest  of  all  mysteries.  In  the  good  olden  time  its 
mystery  had  been  properly  guarded  and  preserved, 
because  legal  proceedings  were  recorded  in  law  Latin 
which  Cicero  could  not  have  read,  or  in  law  French 
which  no  living  Frenchman  of  woman  born  could  under- 
stand; but  now  in  a  less  reverent  and  more  iconoclastic 
age  such  proceedings  were  required  to  be  preserved  in 
English,  which  was  only  rescued  from  vulgarity  by  many 
technical  terms  borrowed  from  other  languages,  and  by 
a  peculiar  and  antiquated  phraseology.  The  proposition 
to  deprive  the  law  of  the  last  vestige  of  clothing,  and 
thus  to  expose  it  naked  to  the  laughter  of  its  enemies, 
was  no  less  sacrilegious  than  indecent.  The  simplifica- 
tion of  the  law  would  be  the  undoing  of  it,  since  no  one 
would  respect  what  every  one  could  understand.  The 
English  Constitution  would  be  overturned,  life  would 
lose  its  sweetness,  chaos  would  come  again,  and  death 
would  be  the  only  refuge.  We  may  be  sure  that  Coke 
said  something  about  the  rash  presumption  of  inexperi- 
enced youth.  He  probably  concluded  by  denouncing 
Bacon  as  an  enemy  of  mankind  and  a  traitor  to  his 
country. 

In  this  contest  the  odds  were  greatly  in  favor  of 
Coke;  a  fact  which  he  knew  full  well.  As  a  scholar  in 
politics  Bacon  excited  a  certain  amount  of  distrust, 
which  was  enhanced  by  the  novelty  of  his  proposition. 
As  a  politician  Coke  was  immeasurably  his  superior. 
Long  afterwards  Bacon,  looking  back  over  his  career, 
said  of  himself  that  he  was  better  suited  to  hold  a  book 
than  to  play  a  part.  In  an  extremely  conservative  age 
the  precedents  of  centuries  weighed  heavily  against  him. 


Concerning  Law  Reform  83 

Nothing  of  the  sort  had  been  tried  since  the  compilation 
of  the  old  Byzantine  codes,  of  which  but  few  legislators 
had  ever  heard.  In  this  respect  as  in  many  others  Bacon 
was  very  far  ahead  of  his  age.  Had  he  succeeded,  the 
evolution  of  our  law  would  have  been  wholly  changed; 
and  English  jurisprudence,  instead  of  lagging  behind 
the  continental  systems,  would  have  led  the  van  in  the 
march  of  reform.  In  England  his  effort  fell  stillborn; 
but  it  attracted  marked  attention  abroad,  and  served  to 
accelerate  the  development  of  the  law  in  alien  lands. 

Bacon,  great  as  he  was,  was  in  no  sense  a  universal 
genius,  as  he  has  sometimes  been  pictured  in  imagination. 
Never  save  in  fancy  did  the  universal  genius  ever  exist. 
Outside  of  the  sphere  of  his  genius  Bacon  was  shorn  of 
his  strength,  and  was  like  unto  other  men.  Though  he 
had  the  flight  of  an  eagle  yet  he  always  skimmed  along 
close  to  the  surface  of  the  earth.  He  tried  his  powers 
in  architecture,  both  theoretically  and  practically;  but 
the  results  were  unqualified  failures;  and  his  metrical 
translations  of  the  Psalms  must  always  take  rank  along 
with  the  worst  specimens  of  poetry  ever  produced  in 
our  language.  He  had  unbounded  genius  for  whatever 
is  practical ;  but  farther  his  genius  did  not  go.  Curiously 
enough,  the  civilization  which  he  projected,  wonderful 
beyond  conception,  partakes  largely  of  all  of  his  defects. 
As  the  law  is,  or  ought  to  be,  above  all  things  practical, 
it  was  strictly  within  his  domain.  He  had  not  the  mar- 
velous technical  knowledge  of  the  common  law  that  made 
of  Coke  an  oracle  in  his  profession ;  but  he  possessed  a 
comprehensive  insight  into  the  spirit,  adaptability  and 
philosophy  of  jurisprudence  which  Coke  could  never 
have  acquired. 

So  thoroughly  conscious  was  Bacon  of  the  necessity 
of  the  work  for  which  he  had  endeavored  to  obtain  the 
sanction  of  Parliament,  that  he  afterwards  resolved  to 
carry  it  out  as  an  individual  enterprise.     In  his  "Pro- 


84  Addresses 

posal  for  Amending  the  Laws  of  England,"  addressed 
to  James  L,  he  showed  that  he  had  thoroughly  matured 
his  scheme,  and  that  he  contemplated  nothing  revolu- 
tionary. "I  dare  not  advise,"  he  said,  "to  cast  the  law 
into  a  new  mold.  The  work  which  I  propound  tendeth 
to  pruning  and  grafting  the  law,  and  not  to  plowing  it 
up  and  planting  it  again;  for  such  a  remove  I  should 
hold  indeed  for  a  perilous  innovation. ' ' 

This  great  work,  which  might  have  been  the  crowning 
glory  of  almost  any  lifetime,  was  never  to  be  accom- 
plished. Bacon  spoke  of  it  in  his  last  years  regretfully 
as  a  work  that  required  assistance,  and  that  he  had  been 
compelled  to  forego.  The  failure  has  been  a  loss  irrep- 
arable; for  no  one  that  ever  lived  was  better  qualified 
for  such  a  task  than  Bacon.  It  seems  strange  that  in 
his  busy  life,  animated  by  such  extensive  designs,  filled 
with  so  many  vicissitudes,  he  should  have  formed  this 
plan  so  early  and  should  have  brooded  over  it  so  long. 
Bacon's  capacity  for  labor  was  something  marvelous. 
During  the  four  years  that  he  was  chancellor  he  cleared 
off  the  long  arrears  of  Ellesmere,  and  passed  judgment 
in  36,000  cases,  though  during  that  period  he  presided 
over  the  House  of  Lords,  was  active  in  all  affairs  of 
State,  participated  in  all  kinds  of  social  functions,  and 
added  largely  to  his  voluminous  writings,  most  of  which 
were  translated  into  Latin,  either  by  himself  or  by  others 
under  his  supervision.  From  early  manhood  he  was  a 
frequent  debater  in  Parliament,  and,  until  he  ascended 
the  bench  he  was  engaged  in  an  extensive  practice  in  the 
courts;  so  that  although  it  might  seem  that  his  printed 
writings  would  exhaust  the  labors  of  a  lifetime,  yet  they 
represent  but  a  small  part  of  the  work  that  he  per- 
formed; hence  it  is  only  matter  for  surprise  that  he 
accomplished  as  much  as  he  did. 

Though  the  more  important  works  of  Bacon  were  pub- 
lished in  Latin  in  order  to  render  them  everywhere 


Concerning  Law  Reform  85 

current  among  scholars,  yet  they  were  very  soon  trans- 
lated into  several  modern  languages,  so  that  they  might 
be  made  accessible  to  a  still  larger  circle  of  readers. 
They  produced  a  profound  impression;  but  their  scope 
was  not  fully  understood;  and  it  cannot  be  said  that 
they  were  received  with  much  favor.  Church  and  State 
remained  attached  to  the  old  moorings;  and  the  bar, 
always  conservative  save  where  a  principle  of  public 
liberty  is  involved,  adhered  rigidly  to  the  methods  of 
Coke.  The  great  majority  of  scholars  were  blindly, 
fanatically  attached  to  the  old  order  of  things.  Outside 
of  a  very  small  circle  of  personal  friends,  such  as  Sir 
Henry  Wotton  and  Hobbes  of  Malmesbury,  it  is  doubt- 
ful whether  Bacon  up  to  the  time  of  his  death  had  made 
a  single  convert;  and  the  subsequent  progress  of  his 
doctrine  was  slow,  being  achieved  in  spite  of  many 
obstructions.  When  Dr.  Johnson,  a  little  more  than  a 
hundred  years  ago,  spoke  of  the  study  of  science  as 
being  derogatory  to  the  higher  faculties  of  the  mind,  he 
echoed  the  sentiment  of  a  great  majority  of  his  country- 
men. Newman  said  that  even  in  his  time  Oxford  was 
a  mediaeval  university.*  It  is  only  within  the  last  twenty 
or  thirty  years  that  the  Baconian  philosophy  can  be  said 
to  have  attained  to  a  definite  triumph;  and  even  now  a 
belated  combatant  occasionally  fires  a  random  shot  at 
the  advancing  column;  but  no  damage  is  done,  and  the 
incident  is  soon  forgotten. 

Bacon  is  the  only  great  and  radical  reformer  who 
was  not  at  the  same  time  an  ardent  propagandist. 
Judging  from  the  effect  of  his  teachings  the  man  that 
fired  the  Ephesian  dome  was  but  a  timid  conservative 
compared  to  him;  but  he  promised  no  Utopia,  and 
besought  no  man  to  enlist  under  his  banner.  Indeed, 
so  frequent  and  impressive  was  his  advice  against  a  rash 


*  Apologia  pro  vita  sua,  p.  149. 


86  Addresses 

acceptance  of  any  novel  doctrine  that  it  may  almost  be 
questioned  whether  he  himself  did  not  entertain  mis- 
givings as  to  the  beneficial  effects  to  be  anticipated  from 
the  tremendous  mine  that  he  was  engaged  in  planting 
under  the  venerable  bastions  of  antiquity.  Convinced 
that  everything  is  experimental,  and  that  caution  should 
preside  where  the  issues  are  uncertain,  and  are  so 
immense  as  to  affect  the  entire  future  of  humanity,  he 
said:  "It  were  good  therefore  that  men  in  their  inno- 
vations would  follow  the  example  of  time  itself,  which 
indeed  innovateth  greatly,  but  quietly,  and  by  degrees 
scarce  to  be  perceived;"  and  he  recommended  that 
"novelty,  though  it  be  not  rejected,  yet  be  held  for  a 
suspect. ' '  But  it  is  difficult  to  believe  that  when  he  said 
in  his  last  will:  "For  my  name  and  memory  I  leave 
it  to  men's  charitable  speeches,  and  to  foreign  nations, 
and  to  the  next  age,"  he  did  not  anticipate  the  final 
success  of  a  revolution  compared  with  which  all  other 
revolutions  were  only  the  dust  of  the  balance. 

It  would  require  volumes  to  recount  the  triumphs  of 
utilitarian  science  founded  on  the  philosophy  of  Bacon, 
including  all  the  inventions  and  discoveries  of  modern 
times,  which  constitute  the  theme  of  common  declama- 
tion. Doubtless  the  debt  we  owe  to  him  exceeds  all  of 
our  powers  of  computation;  but  it  is  not  possible  to 
make  a  gain  in  one  direction  without  a  corresponding 
loss  in  some  other.  If  Bacon  really  had  any  misgivings 
as  to  the  ultimate  effects  of  his  teachings,  events  have 
proved  that  his  fears  were  not  wholly  without  founda- 
tion; for  the  countless  victories  of  science  have  failed 
to  bring  to  our  race  that  spirit  of  peace  and  contentment, 
rarer  even  than  happiness  itself,  which  has  been  the 
dream  of  the  wise  and  the  good  ever  since  the  world 
began.  While  we  boast  of  our  increasing  knowledge, 
we  must  confess  that  our  progress  has  raised  up  social 
questions  that  seem  to  defy  solution,  and  that  threaten 


Concerning  Law  Reform  87 

to  overturn  the  framework  of  society ;  that  the  present 
age  is  in  profound  revolt  against  ills  of  life  that  seem 
to  be  incurable,  and  that  were  formerly  borne  almost 
without  complaint;  and  that  the  constantly  increasing 
complexities  of  modern  life  tend  continually  to  make  of 
existence  a  more  deadly  and  desperate  struggle. 

If  it  would  be  difficult  to  count  up  the  debt  that  we 
owe  to  Bacon,  it  is  equally  impossible  to  compute  what 
we  have  lost.  A  hundred  years  ago  one  of  the  first 
judges  of  the  Supreme  Court  of  the  United  States  spoke 
of  the  Scotch  philosophy  of  Thomas  Reid  as  being  as 
great  a  discovery  as  the  discoveries  made  by  Sir  Isaac 
Newton.  But  alas  for  the  mutability  of  things,  the 
philosophy  of  Thomas  Reid  interests  the  present  genera- 
tion no  more,  while  all  the  other  systems  of  philosophy 
from  Thales  to  Compte  and  Schopenhauer  are  drifting 
out  of  sight.  It  is  a  subject  worthy  of  reflection  that 
these  tremendous  derelicts,  embodying  the  speculations 
of  many  of  the  greatest  minds  that  ever  lived  concerning 
the  faculties,  the  surroundings,  the  origin  and  destiny 
of  man,  hardly  produce  a  ripple  in  the  current  of  modern 
thought. 

If  one  should  spend  his  life  in  counting,  weighing 
and  classifying  grains  of  sand  in  a  valley,  he  would,  no 
doubt,  in  the  course  of  time  acquire  a  wonderful  dex- 
terity in  that  pursuit;  but  he  would  hardly  possess 
a  fit  conception  of  the  beauty  and  grandeur  of  the  outline 
of  the  surrounding  hills.  "The  business  of  the  poet," 
said  Imlac  in  Rasselas,  "is  to  examine,  not  the  indi- 
vidual, but  the  species;  to  remark  general  properties 
and  large  appearances;  he  does  not  number  the  streaks 
of  the  tulip,  nor  describe  the  different  shades  in  the 
verdure  of  the  forest." 

No;  he  deals  not  with  minute  details  and  sundries; 
and  in  an  age  of  details  and  sundries  we  have  elimi- 
nated the  poet.    If  Bacon  planted  the  seeds  of  a  revolu- 


88  Addresses 

tion  that  overturned  the  work  of  Coke,  he  has  rendered 
another  Shakespeare  impossible.  Not  by  the  aid  of 
parliamentary  grant  or  congressional  appropriation,  nor 
by  the  organization  of  gigantic  corporations,  can  the 
sacred  muse  be  wooed  back  to  a  world  which  she  has 
deserted.  The  legitimate  drama  has  been  banished  from 
the  stage,  or  returns  only  after  long  intervals  to  revisit 
the  scenes  of  her  former  triumphs.  Barren  as  were  the 
Middle  Ages  in  most  fields  of  thought  and  action,  yet 
they  brought  forth  new  types  of  architecture  that  have 
been  found  worthy  to  take  their  place  alongside  of  the 
immortal  creations  of  Greece  and  Rome;  while  we,  in 
the  way  of  originality,  only  succeed  in  producing  hideous 
sky-scraping  structures  that,  as  seen  from  the  surface  of 
the  moon,  cast  their  long,  black,  revolving  shadows  over 
the  neighboring  houses  and  streets.  If  at  times  we  dis- 
play great  interest  in  the  arts  of  painting  and  sculpture, 
it  is  mostly  of  the  kind  that  is  got  up  to  order;  but  of 
that  exquisite  sense  of  the  beautiful  that  made  the 
illiterate  Athenian  multitude  the  finest  art  critics  that 
the  world  has  ever  seen,  we  have  not  a  trace;  and  in 
the  absence  of  it  we  pin  our  faith  to  the  guide  books. 
Our  literature,  made  up  now  almost  wholly  of  works  of 
fiction,  is  nearly  as  ephemeral  as  the  publications  of  the 
amateur  writers  of  stories  in  the  daily  papers.  At  inter- 
vals of  a  few  months  some  novel  is  acclaimed  as  immor- 
tal by  enthusiasts  that  could  not  tell  the  name  of  it  a 
year  later. 

The  eloquence  of  the  statesman  has  degenerated  into 
the  rant  of  the  demagogue.  Chrysostom  and  Savana- 
rola,  Bossuet  and  Massillon,  Stillingfleet  and  Wesley 
and  Whitfield  sleep  in  their  hallowed  tombs,  and  have 
left  no  successors.  It  would  be  a  pleasant  thing  for  us 
to  have  at  the  bar  such  men  as  Erskine  and  Curran 
and  Webster  and  Pinkney ;  but  the  age  does  not  produce 
them,  and  we  get  along  the  best  we  can  without  them. 


Concerning  Law  Reform  89 

It  was  said  long  before  Napoleon  that  there  is  but  one 
step  from  the  sublime  to  the  ridiculous;  but  in  an  age 
in  which  we  have  become  painfully  conscious  of  the 
limitations  of  our  powers,  the  ridiculous  has  gradually 
encroached  on  the  sublime  until  there  is  only  a  fading 
line  between  them;  and  in  deadly  and  constant  fear 
of  crossing  it,  we  timidly  take  refuge  in  the  common- 
place. Music  itself,  heavenly  maid,  of  all  the  fine  arts 
the  oldest,  the  most  faithful  and  the  tenderest  friend 
of  man,  she  who  has  soothed  and  comforted  his  sad 
heart  in  every  time  of  sorrow  ever  since  the  morning 
stars  sang  together,  is  said  by  some  to  be  undergoing 
a  like  eclipse. 

This  also  was  in  our  destiny.  Wonderful  as  are  the 
advantages  that  we  have  derived  from  the  scheme  of 
Bacon  for  the  improvement  of  mankind,  yet  it  cannot 
be  denied  that  in  some  respects  our  adoption  of  it  has 
been  like  the  second  eating  of  the  forbidden  fruit.  This 
was  the  inevitable  consequence  of  his  teachings,  the  sum 
and  substance  of  which  was  that  we  should  put  lead  on 
our  wings;  that  we  should  no  more  be  led  by  sentiment, 
nor  seek  the  inaccessible,  nor  dally  with  the  vague  and 
the  undefined.  And  we  have  kept  the  faith;  and  are 
keeping  it  more  and  more  strictly  as  the  years  go  by, 
with  more  and  more  emphatic  results.  It  is  only  the 
other  day  that  Professor  Goldwin  Smith  declared  that 
if  he  lives  a  few  years  longer,  he  expects  to  see  the  last 
poet,  the  last  horse,  and  the  last  woman ;  three  things 
that  will  certainly  be  missed.  A  little  reflection  would 
have  convinced  him  that  the  last  poet  has  already 
passed  by. 

These  are  things  that  we  cannot  help.  Though  we 
may  sometimes  look  regretfully  to  the  past  as  Schiller 
looked  back  to  the  Gods  of  Greece,  or  as  Mary  of  Scot- 
land gazed  on  the  receding  shores  of  France,  yet  our 
way  is  onward;  and  we  shall  never  more  be  content  to 


90  Addresses 

sit  down  by  the  deserted  hearthstones  of  our  ancestors. 
Perhaps  hereafter  some  genius  as  original  as  Bacon, 
and  equally  unheralded,  shall  reveal  to  men  some  better 
way  that  is  now  hidden  from  our  eyes. 

If  the  law  in  its  higher  aspects  has  failed  in  its 
development  in  respect  of  harmony,  or  symmetry,  or 
unity,  or  facility  of  being  understood,  that  result  has 
been  reached  through  causes  that  Bacon  distinctly 
pointed  out  and  repeatedly  warned  us  against.  Although 
he  recommended  the  closest,  most  analytical  and  most 
discriminating  scrutiny  of  individual  instances,  thereby 
opening  the  door  to  infinite  diversity,  yet  he  urged  in 
the  most  impressive  manner  that  through  this  diversity, 
by  means  of  arrangement,  coordination  and  scientific 
classification,  we  should  reestablish  unity  and  harmony 
and  symmetry  on  larger,  truer  and  more  intelligible 
foundations;  a  process  not  applicable  to  poetry  and  the 
fine  arts,  which  were  not  within  his  scheme,  but  one 
which  is  above  all  things  applicable  to  the  law. 

No  one  was  ever  so  great  a  destroyer  as  Bacon;  but 
he  did  not  destroy  for  the  sake  of  destruction ;  but  only 
for  the  purpose  of  building  again  with  lasting  materials 
on  a  more  secure  basis.  Everywhere  he  inculcated  the 
necessity  of  classifying  and  organizing  all  facts  of  exter- 
nal observation,  not  only  with  a  view  to  the  preservation 
of  knowledge,  but  also  with  a  view  to  facilitate  the 
making  of  new  discoveries,  looking  also  possibly  to  that 
unification  of  knowledge,  which  up  to  this  time  remains 
no  more  than  a  pleasing  dream. 

It  might  have  been  supposed  that  the  law,  being 
largely  experimental,  and  naturally  adjusting  itself 
easily  to  comprehensive  rules,  would  have  offered  the 
most  obvious  and  inviting  field  for  the  exhibition  of 
the  theories  of  Bacon;  but  his  teachings  have  had  per- 
haps less  effect  on  English  law  than  on  any  other  science. 
The   practice  of  reporting  individual   cases  which   he 


Concerning  Law  Reform  91 

found  established,  was  an  anticipation  to  some  extent 
of  his  methods  of  critical  inquiry  as  to  individual 
instances;  but  the  legal  profession  rejected  his  doctrine 
of  careful  classification  and  constant  and  scrupulous 
revision  upon  every  new  accession  of  knowledge.  It  is, 
however,  a  safe  prediction  that  his  doctrines,  triumphant 
in  all  other  fields  of  inquiry,  must  eventually  prevail  in 
English  and  American  law  also,  the  most  intractable  of 
all  materials  yet  encountered. 

With  his  greater  singleness  of  purpose  Coke  was 
enabled  to  accomplish,  though  in  a  very  different  way, 
a  task  that  Bacon  was  compelled  to  forego.  Though  not 
the  author  of  the  English  system  of  reporting,  he  brought 
the  art  to  a  degree  of  perfection  never  before  attained, 
and  rarely  reached  in  later  times;  he  gave  to  the  office 
of  reporter  a  new  dignity  and  importance;  while  in  his 
Commentaries  upon  Littleton  he  covered  the  whole  field 
of  English  law  as  it  then  existed.  His  reverence  for 
antiquity  prevented  him  from  discriminating  between 
things  in  full  force  and  things  obsolescent  and  things 
obsolete;  and  hence  he  devoutly  preserved  every  tech- 
nicality that  was  anywhere  imbedded  in  the  law;  thus 
hampering  legal  development  along  the  lines  of  natural 
justice  and  equity,  and  raising  up  that  large  and  influ- 
ential body  of  lawyers,  who,  adhering  always  to  the 
strictest  letter  of  the  law,  made  a  fetish  of  every  con- 
ceivable technicality,  lawyers  who  rendered  perpetual 
homage  to  the  deified  Quibble;  who  shuddered  at  the 
thought  of  an  erasure  in  a  deed,  who  were  ready  to  go 
into  convulsions  at  a  suggestion  to  amend  a  pleading, 
and  who  seemed  really  to  believe  that  the  universe  would 
some  day  be  derailed  and  destroyed  by  a  misplaced 
comma. 

There  is  no  doubt  but  that  Coke's  work  was  and 
remains  a  collossal  monument  of  labor  and  industry. 
He  was  the  Moses  that  led  the  profession  out  of  the 


92  Addresses 

wilderness  of  the  year  books,  the  abridgments,  the 
unwritten,  the  confused  and  undefined  customs.  Before 
this,  the  law  was  but  poorly  understood,  or  was  not 
understood  at  all;  but  Coke  flattered  himself  that  with 
his  commentaries,  which  offered  a  short  road  to  knowl- 
edge, a  man  might  hope  to  attain  to  some  acquaintance 
with  the  common  law  after  the  lucubrations  of  twenty 
years;  a  saying  that  must  have  filled  the  hearts  of  the 
students  of  the  Inner  Temple  with  exceeding  joy. 

When  the  crowning  edifice  of  the  common  law  was 
thus  made  complete,  Bacon  had  already  set  at  work  the 
forces  that  were  to  effect  its  demolition.  The  common 
law  established  a  lay  and  an  ecclesiastical  hierarchy 
reaching  from  the  serf  to  the  throne.  The  political 
fabric  was  mortised  and  riveted  together  in  every  pos- 
sible way.  The  penal  laws  were  hardly  less  bloody  than 
those  of  Draco.  The  feudal  system  of  land  laws,  with 
its  fantastic  complications,  its  oppressive  exactions, 
afforded  a  striking  example  of  the  culmination  of  aris- 
tocratic misrule.  Though  the  institution  of  chivalry, 
now  an  object  of  universal  derision,  had  struck  the  first 
blow  in  her  interest,  woman,  by  the  common  law, 
remained  a  slave  from  her  cradle  to  her  grave.  In  short 
there  was  some  reason  for  saying  that  the  law  as  it  then 
existed  was  "the  result  of  the  blundering  and  chican- 
cery  of  several  generations  that  in  legal  language  is 
called  the  wisdom  of  ages." 

The  common  law  possessed,  however,  one  virtue  that 
redeemed  many  sins.  It  was  instinct  with  that  political 
liberty  that  was  born  and  nurtured  among  the  tribes 
that  lived  in  the  shadows  of  the  great  oaks  of  Germany 
for  ages  before  Tacitus  placed  their  simple  customs  in 
contrast  with  the  meretricious  manners  of  imperial 
Home. 

But  whatever  its  virtues  or  faults  may  have  been,  it 
was  not  endowed  with  the  permanence  which  the  rigidity 


Concerning  Law  Reform  93 

of  its  structure  gave  to  it  in  the  eyes  of  Coke.  The 
chancellor  was  already  engaged  in  smuggling  into  the 
country  the  equitable  principles  of  the  civil  law,  which 
were  at  a  later  day  to  filter  into  the  common  law  courts 
until  the  whole  lump  should  be  leavened;  and  the  new 
civilization,  starting  into  life  at  the  voice  of  Bacon,  was 
to  render  the  affairs  of  life  so  varied  and  complex  as  to 
make  the  common  law  system  wholly  inadequate  to  the 
wants  of  men. 

What  Bacon  desired  was  that  Parliament  should  enter 
upon  a  career  of  cautious,  prudent  and  enlightened  law 
reform.  The  work  of  Coke  was  conceived  in  a  different 
spirit ;  but  his  name  as  a  jurist  was  so  great,  his  accuracy 
so  surprising,  that  his  summing  up  of  existing  law 
acquired  an  authority  almost  as  absolute  as  that  of  a 
legislative  enactment.  They  were  both  great  men,  and 
great  lawyers;  but  their  methods  were  essentially  dif- 
ferent. Coke  had  all  the  qualities  of  a  great  judge, 
and  Bacon  had  all  the  qualities  of  a  great  judge  except 
the  indispensable  virtues;  one  was  the  greatest'  of 
reformers,  the  other  belonged  to  the  ranks  of  the  most 
extreme  conservatism. 

After  the  death  of  Bacon,  there  ensued  a  period  of 
200  years,  during  which  the  spirit  of  Coke  lay  heavy 
on  tower  and  tree,  and  during  which  no  one  even  so 
much  as  mentioned  the  name  of  law  reform.  Scientific 
men  stole  the  ideas  of  Bacon  without  remorse,  without 
acknowledgment,  and  lawyers  discredited  him  because 
he  had  shone  in  fields  which  they  were  disqualified  to 
enter.  But  when  Blackstone  had  presented  his  stately 
and  classical  outline  of  English  law  Bentham  fired  his 
signal  gun  of  revolt.  When  the  discussion  on  the  reform 
bill  of  1832  admitted  some  rays  of  light  into  the  mediae- 
val dungeons  of  English  law,  crustaceans  began  to  lose 
their  vitality  and  to  disappear,  and  insurgents  like  Mill, 
Langdale,  Mackintosh,  Romilly  and  Brougham  took  up 


94  Addresses 

the  task  where  Bacon  had  left  off.  They  fought  often 
unprevailing,  but  with  occasional  victories  the  value  of 
which  no  one  at  present  disputes.  Time  would  fail  me 
to  speak  of  the  manner  in  which  the  warfare  has  been 
carried  on  by  Field  and  by  others  in  our  own  country. 
But  the  contest  begun  by  Bacon  still  remains  undecided. 

The  most  common  objection  to  allowing  the  law  to 
reveal  itself  in  a  statutory  form,  as  Bacon  proposed,  is 
that  case  law  is  much  more  flexible  than  statutory  law. 
If  flexibility  is  what  is  desired,  manifestly  the  best  thing 
to  do  is  to  leave  all  questions  to  the  discretion  of  the 
judge.  But  the  quality  of  inflexibility,  supposed  to 
inhere  in  statutes,  is  a  delusion.  Most  of  us  have  heard 
how  it  was  that  the  Statute  of  Uses,  passed  with  great 
deliberation  by  King,  Lords  and  Commons,  had  no  other 
effect  than  that  of  adding  three  more  words  to  convey- 
ances of  land ;  and  most  of  us  have  observed  how  numer- 
ous statutes  which  seemed  to  a  casual  observer  to  be 
solid  and  rigid,  under  the  skillful  manipulation  of  the 
courts  have  first  become  flexible,  then  plastic,  then  fluid, 
until  at  last  becoming  gaseous,  we  have  seen  them  exhale 
and  disappear  into  interstellar  space.  What  in  our 
ignorance  we  had  taken  to  be  a  promontory  of  firm  land 
proved  to  be  only  an  evanescent  fog  bank. 

Flexibility  is  only  another  name  for  uncertainty;  and 
proverbially  the  highest  excellence  of  the  law  consists 
in  its  freedom  from  uncertainty.  The  law  is  supposed 
to  be  made  up  of  rules ;  and  flexibility  or  uncertainty  is 
that  which  renders  any  rule  ineffectual.  Whatever  is 
intelligible  must  have  some  definite  form,  or  some  power 
of  resistance,  or  some  consistency.  The  lawyer  who  wants 
flexible  rules,  is  like  the  carpenter  or  the  geometer  who 
should  attempt  to  draw  straight  lines  along  the  edge 
of  an  unconfined  shoe  string.  Consciously  or  uncon- 
sciously he  favors  that  laxity  which  makes  of  the  law  a 
snare  for  the  ignorant  and  the  unwary,  and  accomplice 


Concerning  Law  Reform  95 

of  fraud  and  crime.  The  laws  which  "palter  with  us  in 
a  double  sense"  are  worthy  of  the  malediction  which 
Macbeth  at  last  bestowed  on  false  prophets  that 

" keep  the  word  of  promise  to  our  ear, 

But  break  it  to  our  hope." 

When  laws  are  few,  like  those  of  Solon  of  Lycurgus, 
it  is  not  difficult  to  reduce  them  to  a  written  form. 
When  they  increase  in  number  the  difficulty  increases. 
Thus  the  difficulty  of  making  a  code  increases  just  as  the 
need  of  a  code  becomes  more  urgent.  With  us  the  under- 
taking is  so  immense  that  we  hardly  dare  give  it  a 
serious  thought.  The  endeavor  seems  like  that  of  put- 
ting the  ocean  into  a  pint  cup.  Increase  of  knowledge 
brings  confusion,  and  confusion  requires  a  reduction  to 
method.  But  our  collection  of  card  houses,  made  up  of 
case  law,  is  so  extensive,  so  ramified,  so  void  of  contour, 
such  a  wilderness  of  perplexity,  that  we  are  afraid  for 
any  one  to  touch  it.  There  is  no  map  or  bird's-eye  view 
of  it,  no  living  guide  that  knows  a  tithe  of  its  convolu- 
tions, labyrinths  and  entanglements,  so  that  no  lawyer 
is  willing  t  trust  any  other  lawyer  or  set  of  lawyers  to 
undertake  what  seems  to  be  a  hopeless  task.  We  know 
that  the  intelligent  advocate  of  a  code  does  not  propose 
to  change  the  law  itself,  but  only  to  change  the  form  in 
which  it  is  expressed,  canceling  whatever  is  obsolete, 
contradictory,  or  redundant,  reducing  the  remainder  to 
an  orderly  arrangement.  But  the  Italians  have  a  well 
known  saying  that  the  translator  always  betrays;  and 
as  the  proposed  change  of  form  is  a  kind  of  translation, 
we  tremble  for  the  result.  We  are  afraid  that  while  the 
wine  is  being  decanted  from  one  vessel  into  another  some 
drop  of  the  precious  fluid  may  be  lost;  or  that  some 
fermentation  may  supervene  that  may  impair  the  flavor 
of  the  whole.  We  recall  the  pleasant  story  told  by  Vol- 
taire of  the  way  in  which  the  Sultan  Haroun  al  Raschid 


96  Addresses 

caused  all  the  wisdom  of  his  vast  library  to  be  condensed 
first  into  500  volumes,  then  into  one  volume,  and  then 
into  a  single  sentence,  with  an  unexpected  and  dis- 
appointing result. 

But  every  great  change  is  attended  with  fears,  many 
of  which  are  usually  groundless.  By  whomsoever  done 
the  work  will  no  doubt  bear  that  stamp  of  imperfection 
which  seems  to  be  the  trade  mark  of  the  visible  universe ; 
but  it  can  hardly  be  worse  than  our  present  state  in 
which  the  law  is  fast  drifting  from  the  region  of  the 
unknown  to  the  region  of  the  unknowable.  After  all, 
though  the  talents  of  Coke  and  the  genius  of  Bacon 
would  not  be  amiss  in  the  accomplishment  of  such  a 
task,  yet  the  qualities  required,  though  of  a  high  order, 
are  not  really  of  the  highest ;  patience,  fidelity  and  accu- 
racy being  most  in  demand. 

Cardinal  Wolsey,  who  was  certainly  a  sincere  friend 
of  the  cause  of  education,  desired  to  raise  a  fund  out 
of  the  proceeds  of  confiscated  estates  to  establish  a  uni- 
versity in  London  for  instruction  in  the  civil' and  com- 
mon law ;  a  measure  which  was  defeated  by  the  rapacity 
of  the  courtiers  of  Henry  VIII. 

Noticing  this  incident  Lord  Campbell  says:  "Such 
an  institution  is  still  a  desideratum  in  England ;  for  with 
splendid  exceptions,  it  must  be  admitted  that  English 
barristers,  though  very  clever  practitioners,  are  not  such 
able  jurists  as  are  to  be  found  in  other  countries  where 
law  is  systematically  studied  as  a  science." 

Just  here  he  struck  a  very  sore  spot.  We  have  thou- 
sands of  individual  instances,  mere  snap  shots  of  the 
law  under  the  rack,  showing  the  law  in  countless  con- 
tortions, a  wilderness  of  notes  without  any  text ;  but  we 
have  no  scientific  system. 

In  no  way  has  the  insular  condition  of  England  been 
more  fully  shown  than  in  the  development  of  her  laws. 
Without  dwelling  on  the  European  continental  system, 


Concerning  Law  Reform  97 

I  may  say  in  a  few  words  that  by  that  system  the  laws 
are  reduced  to  written  codes;  that  the  courts  do  not  as 
such  make  any  laws,  their  decision  in  one  case  not  being 
authority  in  another.  A  council  of  revision  looks  after 
the  written  law,  suggesting  needed  changes  as  experi- 
ence may  suggest.  In  some  countries  this  council  is 
permanent;  in  others  it  is  appointed  from  time  to  time 
as  may  seem  needful.  It  is  of  course  in  communication 
with  distinguished  judges  and  jurists  throughout  the 
country;  and  its  influence  on  the  legislative  department 
is  paramount,  though  not  decisive. 

Comparative  jurisprudence  is  a  subject  so  extensive 
that  it  is  necessarily  but  little  understood;  but  it  must 
not  be  inferred  that  English  law  has  not  been  studied  by 
continental  jurists.  It  has  been  studied  closely  by  spe- 
cialists ;  and  one  of  its  institutions,  that  of  trial  by  jury, 
has  been  in  modern  times  adopted  into  various  conti- 
nental systems.  Nevertheless  I  believe  that  it  would  be 
quite  impossible  to  find  that  any  continental  jurist  has 
ever  expressed  a  preference  for  judge-made  law,  that 
peculiar  institution  of  the  English  speaking  races. 

The  entire  adoption  of  the  continental  system  is  not 
practicable,  and  is  really  not  desirable.  Our  lawyers 
would  never  consent  to  a  change  so  radical  as  that  which 
would  result  from  the  adoption  of  the  practice  of  the 
continental  courts,  which  in  deciding  cases,  briefly  recite 
a  few  facts,  and  then  pronounce  judgment  without  citing 
authorities  beyond  perhaps  an  occasional  reference  to 
the  code.  The  question  is  whether  Bacon  was  right  in 
thinking  that  case  law  should  be  regarded  as  only  pro- 
visional, and  that  it  ought  to  be  revised,  arranged,  con- 
densed and  re-uttered  in  statutory  form,  so  that  the 
whole  law  might  be  briefer,  more  systematic,  more  com- 
prehensive, more  intelligible  and  more  authoritative. 

It  is  said  by  historians  that  just  before  the  compila- 
tion of  the  codes  of  Justinian,  the  Roman  law  had  become 


98  Addresses 

so  voluminous  that  no  one  could  understand  it,  and  that 
the  books  which  contained  it  would  have  made  a  load 
for  many  camels ;  but  it  would  be  easy  to  show  that  our 
law  books  are  far  more  numerous  than  could  ever  have 
been  those  of  Rome,  or  indeed  of  any  other  country. 

Our  law  is  fragmentary.  It  is  like  the  broken  mirror 
of  Richard  II.;  and  day  by  day  it  is  broken  into  still 
smaller  pieces.  It  is  for  the  most  part  a  vast  and 
heterogeneous  collection  of  individual  instances.  Since 
the  time  that  Coke  made  his  accurate  survey  of  English 
law  the  great  books  of  the  common  law  have  never  been 
adequately  posted  up.  Since  that  time,  now  more  than 
250  years,  entries  have  only  been  made  in  journals, 
blotters,  day  books,  in  loose  memoranda  on  detached 
sheets;  and  by  almost  any  one  that  desired  to  write  on 
the  subject.  When  we  want  to  know  how  any  particular 
account  stands,  we  refer  to  all  manner  of  writers  and 
judges  as  experts,  who  disagree  after  the  manner  of 
experts.  The  courts  are  perpetually  in  conflict.  If 
Charles  V.  could  not  succeed  in  making  a  few  clocks 
keep  time  together,  it  would  be  sheer  madness  to  expect 
that  a  hundred  or  so  of  courts  whose  reports  are  printed 
could  be  kept  in  accord.  On  almost  every  question  they 
are  found  to  vary;  and  they  are  generally  as  divergent 
as  Samson's  foxes. 

We  have  had  various  labor  saving  devices,  Leading 
Cases,  Selected  Cases,  American  Decisions,  American 
Reports,  and  so  on.  Then  we  have  annual  volumes  on 
certain  topics  of  the  law,  legitimate  successors  of  the 
annual  Keepsakes,  Tokens,  and  Books  of  Beauty,  issued 
by  Lady  Blessington  and  others  in  the  first  half  of  this 
century.  Then  we  have  digests  and  text-books  on  all 
subjects  without  number.  But  these  we  can  hardly  use 
in  court;  for  while  one  section  or  one  page  may  be 
favorable  to  our  views,  the  next  will  be  hostile ;  so  that, 


Concerning  Law  Reform  99 

whatever  we  may  use  in  the  seclusion  of  our  chambers, 
what  we  require  in  the  court  room  is  the  uncontra- 
dicted, the  immaculate,  the  austere,  the  uncriticised 
original  report. 

Where  there  is  such  a  conflict  among  the  authorities 
uniform  results  are  not  to  be  expected.  A  judge  may 
decide  almost  any  question  any  way,  and  still  be  sup- 
ported by  an  array  of  cases;  and  his  decision  will  at 
last  probably  be  the  result  of  temperament  or  of  pre- 
possession. It  is  one  of  the  maxims  of  our  law  that  that 
law  is  the  best  that  leaves  the  least  discretion  to  the 
judge.  But  in  the  existing  conflict  of  authorities  a 
judge  can  hardly  decide  anything  without  exercising  his 
discretion.  A  choice  between  antagonizing  cases  involves 
a  large  discretion.  I  apprehend  that  if  by  some  photo- 
graphic process  we  could  get  a  visible  outline  of  our 
nebular  system  of  law,  it  would  appear  very  much  in  the 
shape  of  the  chancellor 's  foot.  The  mere  fact  that  every 
judge  attempts  to  express  his  conception  of  the  law  in 
his  own  language  must  of  itself  be  productive  of  endless 
controversy. 

Our  text-books  are  for  the  most  part  collections  of 
multitudinous  head  notes,  which  are  no  more  than  com- 
pressed tablets  of  the  law,  warranted  to  keep  in  all 
climates,  convenient  for  administration  to  all  the  courts ; 
but  as  no  two  of  them  are  alike,  and  as  they  are  liable 
to  interact  upon  and  to  neutralize  each  other,  their 
effect  on  the  judicial  economy  is  only  a  matter  of  con- 
jecture. The  glorious  uncertainty  of  the  law  which  was 
some  time  a  proverb  has  become  a  truism. 

A  man's  library  is  often  a  fair  index  to  his  character. 
Coke 's  library  consisted  of  folios,  not  many  in  number ; 
for  in  those  days  there  were  only  twelve  volumes  of 
reports,  of  which  nine  were  year  books.  Besides  these 
he  had  the  statutes  of  the  realm,  and  various  abridg- 


100  Addresses 

ments.  His  library,  though  exhaustive,  was  not  large. 
We  may  suppose  that  a  single  shelf  might  hold  all  the 
books  of  a  law  library  of  that  time. 

Nothing  is  more  in  contrast  with  the  age  of  Elizabeth 
than  the  modern  deluge  of  books.  There  are  now  added 
to  the  National  Library  in  Paris  about  60,000  volumes  a 
year,  making  about  6,000,000  volumes  in  the  course  of 
a  century,  even  if  there  should  be  no  increase  from 
year  to  year.  In  various  other  public  libraries  the 
number  of  annual  additions  is  perhaps  no  less.  Of  this 
60,000,  it  is  quite  impossible  that  more  than  500  volumes 
can  have  any  reasonable  or  even  tolerable  excuse  for 
being.  "When  we  look  at  the  books  and  pamphlets  that 
litter  our  book  stalls,  for  the  most  part  mere  sweepings 
of  vacant  chambers,  it  seems  a  pity  that  most  of  them 
shall  be  handed  down  to  a  remote  posterity  like  the 
mummied  cats  of  Egypt.  If  things  go  on  in  this  way 
for  a  thousand  years  it  is  hard  to  see  how  such  vast 
collections  as  must  accumulate  can  be  housed  and  cared 
for.  As  books  continue  to  breed  like  rabbits  in  Australia, 
the  time  may  come  when  it  may  be  a  thing  to  mention 
in  one's  epitaph  as  commending  him  to  all  ages  that  he 
never  wrote  a  book,  and  when  the  man  that  utterly 
extirpates  a  book  will  receive  more  honor  than  one  who 
has  written  a  hundred;  but  before  that  time  comes  it 
would  be  a  public  boon  if  the  Malthusian  doctrine  for 
the  restriction  of  population  could  be  applied  to  the  pro- 
duction of  books.  It  seems  a  pity  that  the  tribunal 
composed  of  the  barber  and  the  curate  that  disposed  of 
the  library  of  Don  Quixote  could  not  have  been  per- 
petuated with  an  immense  increase  of  jurisdiction.  But 
no  books  increase  faster  than  our  law  reports.  It  is 
deplorable  that  there  can  not  be  some  kind  of  central 
clearing  house,  where  reported  cases  may  cancel  each 
other,  leaving  us  some  net  and  intelligible  result.  If 
things  go  on  at  the  present  rate,  the  time  must  soon 


Concerning  Law  Reform  101 

come  when  any  new  Omar  will  be  hailed  as  a  deliverer 
and  as  a  public  benefactor. 

Years  ago  they  had  a  law  in  Sweden  that  possessed 
some  excellent  features.  Whoever  wrote  a  foolish  or  an 
evil  book  was  condemned  to  eat  it  under  penalty  of 
death.  He  thus  appeared  in  the  character  of  Saturn 
devouring  his  own  children.  By  a  humane  provision  the 
author  was  allowed  to  serve  up  his  book  with  such 
ingredients  as  might  render  it  most  palatable.  Theodore 
Reinking,  having  written  a  stupid  book  in  Latin  on 
political  subjects,  was  condemned  under  this  law  in  1644. 
It  is  said  that  he  cooked  his  book  up  into  some  kind  of  a 
sauce,  in  which  form  it  no  doubt  acquired  a  piquancy 
that  it  had  not  before  possessed.  The  punishment  was 
presumably  effectual,  as  there  is  no  evidence  that  he 
appeared  again  as  an  author,  probably  having  lost  his 
taste  for  books.  Such  a  law  would  not  only  lessen  the 
number  of  books,  but  it  would  promote  brevity  and  sim- 
plicity of  style ;  for  if  a  man  were  in  danger  of  having 
literally  to  eat  his  own  words,  it  may  be  supposed  that 
he  would  not  use  any  more  than  were  necessary,  and 
that  he  would  avoid  sesquipedalian  words,  any  one  of 
which  would  suffice  for  a  hearty  meal;  while  the  rigid 
enforcement  of  such  a  law  would  tend  greatly  to  promote 
the  improvement  of  culinary  art,  to  say  nothing  of  the 
accurate  knowledge  that  would  be  acquired  as  to  the 
effect  of  different  kinds  of  literary  diet  on  the  digestive 
organs. 

A  year  or  so  ago,  I  read  what  seemed  to  me  to  be  a 
very  sensible  report  by  one  of  your  committees  on  the 
subject  of  the  avalanche  of  law  books  that  daily  issues 
from  the  teeming  press.  Soon  afterwards  I  saw  a  notice 
of  this  report  in  a  publisher's  circular,  in  which  the 
publisher  said  that  if  lawyers  did  not  want  new  books, 
the  remedy  was  easy;  they  need  not  buy  them.  It  was 
very  kind  of  him  to  say  so ;  and  what  he  said  was  true ; 


102  Addresses 

but  it  was  not  the  whole  truth.  Collectively  we  could 
refuse  to  buy  such  books,  individually  we  can  not.  We 
are  like  the  armed  powers  of  Europe.  Each  and  all 
would  be  benefited  by  a  general  disarmament,  but 
neither  can  disarm  unless  all  the  rest  will  do  so.  As 
nearly  all  of  our  law  stands,  on  the  shifting  sands  of 
individual  cases,  and  as  every  new  case,  like  every  new 
child  that  is  born,  is  fraught  with  unknown  possibilities, 
self-preservation  requires  that  we  shall  keep  up  with  the 
disorderly  and  rapidly  moving  procession  as  well  as  we 
can;  and  as  we  cannot  remember  one  case  out  of  a 
hundred,  even  if  we  had  time  to  read  them  all,  we  have 
to  buy  digests  and  text-books  without  number,  good,  bad, 
and  indifferent,  to  serve  as  convenient  indexes.  If  we 
fail  to  act  thus  dire  will  be  our  fate.  If,  for  instance,  we 
have  occasion  to  refer  in  argument  to  the  Dartmouth 
College  case,  we  may  apprehend  that  our  adversary, 
holding  aloft  a  late  issue  of  some  reporter,  will  triumph- 
antly announce  that  that  decision  has  been  overruled  by 
the  Supreme  Court  of  Alaska,  a  fact  that  he  supposed 
was  known  to  every  practicing  lawyer;  or,  if  emulating 
the  eloquence  of  Patrick  Henry,  we  refer  to  the  Magna 
Charta,  our  opponent  will  announce  with  fiendish  exulta- 
tion that  he  holds  in  his  hand  a  book  fresh  from  the 
press,  a  book  destined  to  form  an  epoch  in  the  history  of 
jurisprudence,  a  mature  work  on  the  Statute  of  Limita- 
tions as  applied  to  Estrays,  written  by  a  retired  minister 
of  the  gospel  of  several  years  standing,  which  demon- 
strates conclusively  that  the  Magna  Charta  was  never 
enacted  in  the  manner  required  by  the  English  constitu- 
tion. Happy  shall  we  be  if  we  shall  be  able  to  produce 
some  printed  paragraph  saying  that  the  learned  judges 
of  the  Supreme  Court  of  Alaska  have  fallen  into  an 
error  as  to  the  Dartmouth  College  case,  or  that  the 
extremely  erudite  author  of  the  text-book  mentioned  has 
drawn  his  conclusion  from  insufficient  data.    Thus  it  is 


Concerning  Law  Reform  103 

that  we  have  to  buy  all  the  latest  books,  if  for  nothing 
else  in  order  to  defend  ourselves  against  the  bad  law 
that  is  constantly  being  exploded  on  the  profession.  To 
a  traveller  from  Cathay  it  might  well  seem  that  the  legal 
profession  is  organized  and  maintained  solely  in  the 
interest  of  booksellers. 

To  the  really  thoughtful  mind  the  expedient  of  a 
strike  must  sometimes  have  suggested  itself.  If  we  were 
only  organized,  and  had  a  master  lawyer,  who  could  tell 
us  how  and  when  to  strike,  and  if  we  could  manage  to 
evade  Federal  injunctions,  we  might  march  on  the  prin- 
cipal publishing  centers,  and,  firing  their  immense  mag- 
azines of  unsold  law  books,  we  might  feel  one  moment 
of  delirious  joy  to  see  the  landscape  illuminated  by  what 
Coke  called  "the  gladsome  light  of  jurisprudence." 

Or  if  we  preferred  milder  measures,  we  might  issue 
an  ultimatum,  saying:  "We  do  not  want  any  more  of 
your  books.  If  the  law  is  a  science  at  all,  anything 
capable  of  human  comprehension,  we  have  more  books 
now  on  that  subject  than  there  are  on  all  other  scientific 
subjects  put  together,  leaving  out  of  course  all  those 
that  are  wholly  obsolete  on  either  side.  Mind  cannot 
master  them,  the  memory  cannot  retain  them.  Extremes 
meet,  and  too  much  law  is  the  same  as  no  law.  By  dint 
of  endless  repetitions  counsel  is  darkened,  by  reason  of 
multitudinous  illustrations  the  rule  is  lost  sight  of." 

In  arguing  the  case  of  Jones  vs.  Randall,  Cowp.  38, 
before  Lord  Mansfield,  Mr.  Dunning  said:  "The  laws 
of  this  country  are  clear,  evident  and  certain;  all  the 
judges  know  the  laws,  and,  knowing  them,  administer 
them  with  uprightness  and  integrity." 

Mr.  Dunning  certainly  displayed  a  keen  sense  of 
humor;  but  Mansfield,  true  to  his  Scotch  origin, 
answered  seriously,  saying:  "As  to  the  certainty  of 
the  law  mentioned  by  Mr.  Dunning,  it  would  be  hard 
upon  the  profession  if  the  law  was  so  certain  that  every- 


104  Addresses 

body  knew  it;  the  misfortune  is  that  it  is  so  uncertain 
that  it  costs  much  money  to  know  what  it  is,  even  in 
the  last  resort." 

The  rule,  correctly  stated,  is  that  all  men  are  pre- 
sumed to  know  the  law  except  the  judges  of  the  courts. 
They  are  not  presumed  to  know  it;  and  hence  they  can 
not  be  held  responsible  for  any  official  conduct  based  on 
ignorance  or  misconception  of  the  law.  The  courts, 
which  are  only  the  judges  idealized,  are,  however,  pre- 
sumed to  know  the  law ;  a  presumption  that  can  be  safely 
indulged,  since  it  involves  no  personal  liability ;  a  mere 
complimentary  fiction,  as  most  lawyers  know,  like  the 
presumption  that  all  men  are  innocent. 

None  of  us  pretend  to  know  the  law,  or  if  we  know 
it  at  all  it  is  in  a  very  general  way,  something  like  the 
manner  in  which  we  know  our  native  country,  by  maps, 
by  boundaries,  by  great  mountain  ranges,  and  by  a  few 
landscapes,  being  ignorant  of  the  most  of  the  multi- 
tudinous details.  When  asked  a  question  about  the  law, 
whether  written  or  unwritten,  we  answer  with  a  modesty 
and  distrust  not  innate,  but  which  is  the  fruit  of  many 
surprises  and  disappointments.  We  never  could  have 
known  much  of  such  a  boundless  subject;  and  much 
that  we  may  have  known  has  been  forgotten. 

Mr.  Livingston,  in  his  report  on  the  penal  code  of 
Louisiana,  said :  ' '  Is  it  not  a  mockery  to  refer  me  to  the 
common  law  of  England  ?  Where  am  I  to  find  it  ?  Who 
is  to  interpret  it  for  me?  If  I  should  apply  to  a  lawyer 
for  a  book  that  contained  it,  he  would  smile  at  my 
ignorance,  and,  pointing  to  about  500  volumes  on  his 
shelves,  would  tell  me  that  these  contained  a  small  part 
of  it;  that  the  rest  was  either  unwritten,  or  might  be 
found  in  London  or  New  York,  or  was  shut  up  in  the 
breasts  of  the  judges  at  Westminster  Hall." 

At  present  an  American  lawyer,  pointing  to  shelves 
containing  at  least  5,000  volumes,  would  say  that  no  one 


Concerning  Law  Reform  105 

knows,  or  pretends,  or  hopes  ever  to  know  the  law. 
Were  Coke  alive  now  he  would  not  pretend  to  know 
all  the  unwritten  law.  Such  stupendous  knowledge  was 
never  vouchsafed  to  mortals.  We  are  soon  to  have  a 
digest  that  is  to  contain  references  to  nearly  500,000 
American  cases,  overflowing,  like  the  floods  of  Egypt, 
through  all  the  letters  of  the  alphabet. 

Our  statutes  are  for  the  most  part  as  fragmentary 
as  the  unwritten  law.  Drawn  up  often  by  some  rural 
member  who  is  trying  his  prentice  hand  on  legislation, 
and  who  would  not  hesitate  to  change  the  orbits  of  the 
planets  if  he  had  a  chance,  mutilated  in  the  legislative 
mill,  thundering  in  the  preface  with  preposterous  titles 
and  irrelevant  preambles,  contused,  riddled  and  broken 
by  discordant  and  conflicting  amendments,  dislocated 
and  distorted  by  impossible  provisos,  they  inspire  us 
with  a  sense  of  dismay;  so  that  after  perusing  them 
repeatedly  we  are  fain  to  confess  that  they  are  like 
the  "idle  tears,"  and  that  we  "know  not  what  they 
mean."  Or  if  the  statute  is  more  carefully  drawn,  and 
by  a  more  competent  hand,  it  will  generally  be  found  to 
be  a  mere  stone  or  log  thrown  in  for  the  purpose  of 
checking  or  diverting  some  current  of  judge-made  law, 
with  the  unexpected  result  of  overflowing  remote  gardens 
and  plantations  of  which  the  author  of  the  statute  had 
never  a  thought. 

The  time  was  when  it  was  supposed  to  be  a  reproach 
to  call  one  a  case  lawyer ;  but  now  we  are  all  either  case 
lawyers,  or  are  not  lawyers  at  all.  Cases  are  our  coun- 
ters, and  there  are  no  coins.  Our  legal  arguments  are 
for  the  most  part  a  mere  casino-like  matching  and 
unmatching  of  cases,  involving  little  or  no  intellectual 
effort.  The  law  is  ceasing  to  be  a  question  of  prin- 
ciples, and  is  becoming  a  mere  question  of  patterns. 
Often  we  have  to  snatch  the  cases  from  the  vast  moulder- 
ing heap  in  haste.    Some  of  them  may  have  been  over- 


106  Addresses 

ruled,  others  may  be  moribund;  some  may  be  like 
Thoroughgood  vs.  Bryan,  overruled  by  the  court  that 
made  them,  or  like  Dumpor's  case,  repealed  by  act  of 
Parliament,  but  still  having  a  posthumous  existence  in 
some  of  our  States.  We  do  not  know  how  the  matter  may 
stand ;  but  we  walk  out  on  the  unsteady  footing  of  these 
cases  to  the  extreme  limit,  and  marshal  the  court  the  way 
it  should  go.  The  judge  may  be  learned;  but  he  may 
know  no  more  of  these  particular  cases  than  we  do. 
The  familiar  sound  of  Brown  vs.  Jones  may  awaken  some 
far-off  memory  like  the  reminiscences  of  childhood;  and 
on  the  faith  of  that  case  he  may  decide  the  question 
one  way  or  the  other,  only  to  find  out  afterwards  that 
he  was  in  error,  as  the  case  that  he  recalled  was  another 
case  between  the  same  inveterate  litigants. 

Brown  and  Jones,  whose  quarrels  live  after  them,  have 
been  overtaken  by  a  strange  destiny.  They  disputed 
perhaps  about  an  ox  found  damage  feasant,  levant  and 
couchant ;  and,  going  to  law  tooth  and  nail,  they  hurled 
sulphurous  imprecations  at  each  other,  and  cherished  a 
mutual  hatred  that  might  be  compared  in  intensity  to 
that  which  animated  Coke  and  Bacon.  Their  warfare 
is  over,  and  they  have  long  since  been  buried  in  remote 
and  forgotten  graves;  but  now  by  the  irony  of  fate 
they  appear  in  all  law  books  bracketed  together  in  an 
eternal  embrace,  like  Francesca  da  Rimini  and  her  lover 
in  the  shades  below;  and  their  united  names  serve  as 
a  tag  to  indicate  some  particular  principle  or  axiom 
of  the  law  over  which  new  controversies  arise  from  time 
to  time.  Seeing  them  so  often  engaged  in  this  pas  de 
deux  this  modern  Damon  and  Pythias  might  seem  to  be 
as  inseparable  as  the  Siamese  twins ;  but  at  rare  intervals 
we  catch  a  glimpse  of  one  or  the  other  of  them  walking 
alone,  ex  parte,  as  if  in  a  trance,  "wrapped  in  the  soli- 
tude of  his  own  originality."  Obscure  as  they  were,  a 
certain  amount  of  mystery  attended  their  coming  hither 


Concerning  Law  Reform  107 

and  their  going  hence ;  but  if,  either  jointly  or  severally, 
they  served  to  make  clearer  the  difference  between  tres- 
pass and  case,  or  to  explain  the  true  inwardness  of  the 
Absque  Hoc,  surely  they  did  not  live  in  vain. 

The  trial  of  each  case  in  our  courts  brings  with  it  a 
retrial  of  many  former  cases ;  and  each  lawyer  engaged 
in  court  sets  up  his  own  mental  alembic  in  order  to 
distil  the  law  of  the  cases  cited  by  him  from  the  con- 
crete facts  in  which  it  is  embodied;  a  task  requiring 
time,  patience  and  discrimination,  but  which  must  often 
be  accomplished  with  a  degree  of  haste  which  renders 
anything  like  accuracy  impossible.  In  many  instances 
we  simply  call  over  our  rosary  of  cases,  pitting  against 
one  decision  by  Chief  Justice  Marshall  ten  later  ones 
rendered  by  Mr.  Justice  Shallow,  without  any  attempt 
at  discrimination  as  to  facts,  partly  because  lack  of  time 
forbids  that  necessary  process. 

With  proper  relays  of  books  there  is  no  reason  why 
under  our  system  a  legal  argument  should  not  go  on 
forever,  provided  the  principal  actors  could  be  rendered 
immortal,  and  could  be  made  proof  against  exhaustion. 
As  the  matter  stands,  after  the  incumbent  of  the  bench 
has  been  pelted  with  cases  of  every  degree  of  relevancy 
and  irrelevancy  for  some  hours,  during  the  latter  part 
of  which  time,  being  now  thoroughly  hypnotized,  he  has 
been  engaged  in  a  vain  effort  to  find  out  what  the  uni- 
verse was  made  for,  he  finally  recovers  sufficient  anima- 
tion to  pass  on  the  question,  "so  ably  and  exhaustively 
discussed  at  the  bar,"  as  he  is  pleased  to  remark,  decid- 
ing, perhaps,  as  charitable  people  are  wont  to  do,  in 
favor  of  the  most  importunate  beggar,  who  is  generally 
the  worst  of  the  lot.  For  no  truer  thing  has  been 
uttered  than  was  spoken  by  Judge  Dillon,  who  says: 

"When  the  judges  resort,  as  they  frequently  do,  to 
analogies  supposed  to  be  furnished  by  previous  cases 
for  the  rule  of  decision  to  apply  to  the  case  in  hand,  it 


108  Addresses 

must  often  be  extremely  uncertain  in  advance  what  the 
result  will  be;  and  it  is  frequently  doubtful  whether, 
fettered  in  this  way,  they  reach  as  sound  results  as  if 
governed  by  general  considerations  of  what  is  right  and 
just."* 

I  have  made  no  special  estimate;  but  I  think  I  can 
not  be  far  wrong  in  supposing  that  there  are  in  this 
country  to-day  in  common  use  at  least  ten  times  as 
many  law  books  as  there  were  forty  years  ago;  and 
during  the  last  twenty  years  the  progressive  increase  in 
the  number  of  such  books  has  been  greatly  in  excess  of 
all  previous  calculations.  A  short  chapter,  in  Black- 
stone's  Commentaries,  on  Corporations  is  now  expanded 
into  the  magnum  opus  of  Judge  Thompson  on  that  sub- 
ject, consisting  of  six  volumes  of  more  than  a  thousand 
pages  each,  of  which  a  proper  index,  as  the  publishers 
inform  us,  would  require  a  volume  of  from  400  to  800 
pages. 

The  most  of  the  new  cases  that  are  reported  are  in 
principle  mere  repetitions  of  former  cases;  and  as  such 
they  are  not  only  useless,  but  detrimental.  More  than 
200  years  ago  the  Statute  of  Frauds  of  Charles  II.  was 
enacted.  It  seemed  to  be  simple  enough,  comprising 
only  a  few  sections;  but  the  last  work  on  the  subject  of 
this  statute  is  a  bulky  volume,  containing  reference  to 
thousands  of  cases.  It  must  be  plain  that  if  with  all  of 
these  adjudications  we  do  not  understand  the  statute, 
then  we  never  can  do  so.  Indeed  the  statute  is  so  stuck 
all  over  with  cases,  just  as  the  hull  of  a  ship  is  some- 
times stuck  all  over  with  barnacles,  that  we  hardly  ever 
see  it;  and  whenever  we  consult  that  branch  of  the  law 
we  lose  ourselves  among  the  glosses  that  have  been  put 
upon  it.    In  short,  our  legal  science  tends  rapidly  to  a 


•Law  and  Jurisprudence  of  England  and  America,  p.  272,  n. 


Concerning  Law  Reform  109 

mere  strife  of  words  not  unlike  that  in  which  scholastic 
learning  finally  broke  up  and  disappeared. 

Of  course  one  may  be  an  advocate  of  codification 
without  approving  of  many  wild  optimistic  theories  that 
have  emanated  from  its  most  enthusiastic  partisans.  If 
Bentham  seems  to  belong  to  that  class  it  must  be  remem- 
bered that  when  he  took  up  arms  against  the  existing 
state  of  the  law,  English  jurisprudence  was  burdened 
and  disgraced  by  many  absurdities  which  have  since 
disappeared  under  an  influence  which  Bentham  was  the 
first  to  inspire  into  the  public  mind.  It  must  also  be 
conceded  that  the  excessive  zeal  of  reformers  is  some- 
times beneficial  in  redressing  the  balance  that  is  ruled 
by  an  equally  unreasonable  conservatism. 

A  medium  course  would  no  doubt  be  safest.  A  few 
judicious  additions  to  our  Statute  of  Frauds,  for 
instance,  might  condense  and  give  definite  expression  to 
whole  volumes  of  case  law.  Recently  the  commercial 
law  of  England  has  been  enacted  as  a  statute  consisting 
of  a  hundred  sections,  reducing  the  volume  of  the  law 
on  that  subject,  as  was  estimated  by  the  author  of  the 
statute,  to  about  one  five  thousandth  part  of  its  former 
bulk.  In  this  country  the  reduction  by  the  same  process 
would  hardly  be  less  than  to  one  fifty  thousandth  part. 

The  statute  referred  to  seems  to  have  given  very 
great  satisfaction  in  England;  but  some  such  work  is 
much  more  needed  here  than  there,  both  on  account  of 
the  greater  number  of  our  law  books,  and  on  account 
of  an  anomaly  that  exists  nowhere  else.  Ever  since 
the  decision  in  Swift  vs.  Tyson  it  has  been  held  by  the 
Federal  courts  that  they  are  not  bound  to  follow  the 
decisions  of  the  State  courts  of  last  resort  in  respect  of 
questions  of  general  commercial  law.  Thus  it  often  hap- 
pens that  a  State  court  and  a  Federal  court  sitting  side 
by  side  will  purposely  decide  cases  on  a  like  state  of 


110  Addresses 

facts  differently.  This  gives  to  the  complaining  party 
in  many  instances  not  only  a  choice  of  forums,  but  also 
a  choice  of  results ;  an  evil  which  ought  not  to  exist,  an 
evil  which  would  not  exist  if  the  law  on  this  subject 
were  reduced  to  the  form  of  a  statute,  either  State  or 
Federal.  Perhaps  if  Congress  could  be  induced  to  pass 
an  interstate  and  international  commercial  code,  all  the 
States  would  soon  adopt  it ;  and  this  would  certainly  be 
a  great  improvement  on  our  present  chaotic  methods. 
There  are  other  branches  of  the  law  that,  like  commer- 
cial law,  naturally  lend  themselves  to  codification ;  and 
prudence  would  suggest  that  they  should  first  receive 
attention,  the  process  being  gradually  extended  to  other 
topics. 

In  England  the  constitution  is  unwritten.  It  is  noth- 
ing but  a  collection  of  customs  more  or  less  vague. 
There  is  a  notion  that  in  order  to  be  respected  it  must 
be  concealed,  or  wrapped  in  mystery  like  the  veiled 
prophet.  No  one  knows  what  it  is,  and  any  one  can 
claim  for  it  whatever  he  likes.  We  in  America  assume 
that  we  occupy  in  this  regard  a  much  more  enlightened 
position.  Our  organic  law  is  all  written,  so  that  any 
one  can  read  it  that  pleases.  It  is  more  important  than 
all  other  laws  put  together.  It  sums  up  all  the  guar- 
anties of  rights  of  property,  of  life  and  of  liberty, 
precious  heirlooms  acquired  after  ages  of  deadly  strife 
and  warfare,  sealed  with  the  blood  of  a  long  line  of 
patriots  and  brave  men.  While  we  do  not  question  the 
necessity  of  expressing  the  fundamental  law  relating 
to  these  vital  principles  in  terse  and  deliberate  language 
through  the  organ  of  conventions  composed  chiefly  of 
laymen,  we  scruple  to  undertake  the  perilous  task  of 
reducing  to  peremptory  and  plain  written  words  the 
law  relating  to  bills  of  exchange  and  promissory  notes. 

"The  frightful  accumulation  of  case  law,"  said  Sir 
Henry   Maine,   "conveys   to   English   jurisprudence   a 


Concerning  Law  Reform  111 

menace  of  revolution  far  more  serious  than  any  popular 
murmurs,  and  which,  if  it  does  nothing  else,  is  giving  to 
mere  tenacity  of  memory  a  disgraceful  advantage  over 
all  the  finer  qualities  of  the  legal  intellect." 

In  this  country  of  course  the  case  is  far  worse.  Com- 
pared with  that  of  the  American  lawyer,  with  his 
prodigious  collection  of  cases,  the  condition  of  the  Chi- 
nese printer  with  his  hundred  thousand  separate  blocks 
with  which  to  set  up  the  printed  page,  is  enviable. 

Reviled  or  contemned,  whoever  favors  a  rational  law 
reform  may  possess  his  soul  in  peace.  The  stars  in 
their  course  fight  for  him.  Sooner  or  later  the  present 
system  must  break  down  under  its  own  weight.  Every 
new  case  that  is  decided,  every  new  digest  or  text-book 
that  is  issued,  but  hastens  the  day  when  the  great  Pon- 
tine marsh  of  case  law  shall  be  drained. 

When  Napoleon  at  St.  Helena  looked  back  over  the 
past,  he  said:  "My  code  is  the  sheet  anchor  that  will 
save  France,  and  will  entitle  me  to  the  benediction  of 
posterity." 

His  genius  and  energy  had  sufficed  to  compress  the 
evolution  of  centuries  into  less  than  a  lifetime ;  and  now, 
when  his  scepter  had  turned  to  ashes,  when  all  his  con- 
quests had  been  wrenched  away,  and  he  was  a  lonely 
prisoner  far  from  the  scenes  of  his  triumphs,  something 
told  him  that  beyond  his  victories  on  the  field  of  battle, 
more  enduring  than  towering  arch,  or  stately  column, 
or  marble  sepulchre,  would  be  a  work  of  peace  to  which 
he  had  given  only  a  part  of  four  months  of  his  time,  a 
work  unstained  with  blood,  unpolluted  with  crime. 

Perhaps  I  cannot  better  close  what  I  had  to  say  this 
evening  on  a  topic  that  requires  much  more  ample  and 
profound  consideration  than  I  have  been  able  to  give  it, 
than  by  quoting  the  language  of  a  modern  writer : 

"A  petty  State,  having  little  to  boast  of,  may  well 
keep  its  laws,  or  what  are  called  its  laws,  hidden  in 


112  Addresses 

obscurity ;  but  a  great  country  loses  half  its  dignity  and 
strength  when  it  cannot  in  an  orderly  and  methodical 
way  give  some  account  to  all  whom  it  may  concern  of 
the  main  reasons  why  its  social  progress  and  the  con- 
tentment of  its  citizens  have  been  so  well  assured."* 


*1  Paterson,  Lib.  Subject,  175. 
Village  Communities,  p.  347. 


"THE  PRESIDENT  OF  THE  UNITED 
STATES" 

Response  to  This  Toast  on  the  Occasion  of  President  Roosevelt's 
Visit  to  Little  Rock,  October  5,  1005 


"THE  PRESIDENT  OF  THE  UNITED 
STATES" 

I  will  reply  to  that  toast  by  saying  that  it  seems  to 
me  that  the  most  agreeable  and  encouraging  retrospect 
in  American  history  is  to  be  found  in  the  lives  of  our 
American  presidents.  Here  is  a  fine  opening  for  an 
extensive  dissertation ;  but  as  this  is  neither  the  time  nor 
the  place  for  anything  of  that  kind,  I  refrain,  contenting 
myself  with  a  few  words. 

One  of  the  chief  grounds  of  opposition  to  the  adoption 
of  the  federal  constitution  was  the  liberal  grant  of  power 
to  the  president;  a  very  vulnerable  point  of  attack, 
because  men  who  had  experienced  the  tyranny  of  George 
III.  and  who  had  succeeded  in  establishing  their  liber- 
ties only  at  the  price  of  a  long  and  bloody  war,  were 
naturally  suspicious  of  the  one-man  power. 

For  many  years  after  that  great  controversy  was 
settled  European  writers  on  political  topics  habitually 
prophesied  that  this  extensive  grant  of  power  would 
soon  lead  to  the  overthrow  of  the  government,  and  to  the 
establishment  of  a  despotism  in  its  place. 

We  have  now  had  a  long  succession  of  presidents 
belonging  to  many  political  parties;  but  these  dire  pre- 
dictions have  never  been  realized.  On  the  contrary, 
our  presidents  have  all  been  upright  and  patriotic  men, 
attentive  to  their  official  duties,  seeking  in  every  way 
to  promote  the  best  interests  of  the  country  according 
to  their  several  abilities  and  opportunities ;  thus  putting 
to  shame  the  longest  and  most  illustrious  line  of  kings 
that  ever  alternately  blessed  or  afflicted  mankind. 

The  event  has  proved  that  our  presidents  have  been 
more  conservative  and  more  mindful  of  constitutional 

115 


116  Addresses 

limitations  than  the  legislative  department;  so  that  by 
this  long  and  consistent  course  of  wise  and  prudent  con- 
duct the  presidential  office  has  acquired  honor  and 
dignity  not  directly  derived  from  the  constitution,  thus 
affording  new  guarantees  for  the  future. 

Our  presidents  have  all  had  many  difficult  problems 
to  deal  with;  and  none  of  them  have  escaped  censure; 
for  Calumny,  like  Death,  loves  a  shining  mark.  Wash- 
ington in  his  declining  years  said  that  he  had  been 
accused  of  every  crime  that  Nero  ever  committed;  and 
his  immediate  successors  were  continually  assailed  by  the 
most  foul  and  improbable  slanders ;  falsehoods  concocted 
by  the  American  demagogue  that  walketh  in  darkness 
and  lieth  at  noonday ;  or  at  least  did  so  in  former  times ; 
for  we  may  now  congratulate  ourselves  in  our  more 
enlightened  age  that  the  American  demagogue,  like  the 
mammoth  and  the  mastodon  that  once  inhabited  our 
forests,  has  ceased  to  exist ;  and  that  his  siren  voice  is  no 
longer  heard  in  the  land. 

It  is  fortunate  for  us  that  political  differences  of 
opinion  must  always  exist ;  for  otherwise  we  should  soon 
sink  into  a  state  of  mental  and  moral  degredation,  wholly 
incompatible  with  liberty  or  progress ;  but  it  is  a  mistake 
to  regard  each  recurring  presidential  election  as  a  savage 
foray  of  revenge  and  extermination,  instead  of  being,  as 
it  was  intended,  a  peaceful  method  of  solving  political 
questions,  and  a  necessary  requisite  for  the  continua- 
tion of  a  government  of  law  and  order. 

It  would  certainly  be  better  if  our  political  contests 
could  be  carried  on  with  less  rancor ;  if  we  could 

" do  as  adversaries  do  in  law, 

Strive  mightily,  but  eat  and  drink  as  friends." 

But  it  is  still  more  unfortunate  when  the  bitterness  of 
controversy  is  carried  over  after  the  contest  is  ended; 
bad  policy,  too,  on  the  part  of  the  disappointed,  since 


"The  President  of  the  United  States"   117 

patience  and  good  humor  take  away  half  the  sting  of 
defeat,  and  signs  of  anger  and  resentment  but  serve  to 
increase  the  triumph  of  the  enemy,  tending  to  make  him 
forget  that  in  this  strange  world  of  ours  the  victor  of 
today  is  frequently  the  vanquished  of  tomorrow. 

Most  of  our  political  opinions  are  by  no  means  axio- 
matic truths,  and  none  but  a  blind  fanatic  can  imagine 
that  virtue,  good  sense  and  patriotism  are  only  to  be 
found  in  his  own  political  party;  hence,  however  great 
our  political  differences  may  be,  they  sink  out  of  sight 
when  we  meet,  as  we  do  on  this  occasion,  to  do  honor  to 
the  president  of  the  United  States,  who  is  not  the  presi- 
dent of  any  political  party,  but  whose  proudest  title  is 
that  he  is  president  of  every  man,  woman  and  child 
under  the  protection  of  the  American  flag,  whether  on 
land  or  sea;  a  sentiment  that  has  been  often  and  most 
forcibly  expressed  by  the  words  and  by  the  acts  of  our 
most  highly  honored  guest  of  this  auspicious  hour. 

The  occasion  that  has  brought  us  together  is  not  one 
of  unmeaning  compliments  and  of  merely  ceremonial 
display.  The  great  and  enthusiastic  multitudes  that  fill 
our  streets,  our  parks  and  other  public  places,  with  their 
hearty  greetings,  your  present  assemblage,  gentlemen, 
within  this  hall,  the  kindly  words  that  have  been  spoken, 
will,  we  trust,  carry  home  to  our  honored  guest  the  pro- 
found assurance  that  this  homage  is  not  paid  exclusively 
to  the  president,  but  that  it  is  no  less  a  heartfelt  tribute 
to  the  scholar,  the  writer,  the  soldier,  the  patriot  and 
the  statesman ;  one  who  does  not  fear  to  take  the  public 
into  his  confidence;  one  who  has  acquired  wisdom  from 
a  long  and  varied  experience  in  public  affairs ;  one  who, 
moreover,  is  a  mighty  hunter  before  the  Lord;  worthy 
to  have  hunted  with  old  Nimrod  himself,  or  in  latter 
times  with  Israel  Putnam,  or  with  Daniel  Boone,  when 
bears  were  to  be  found  on  every  hillside. 

The  present  visit  will  always  be  the  source  of  pleasant 


118  Addresses 

and  grateful  recollections  on  the  part  of  the  people  of 
this  state  and  city;  and  we  would  venture  to  hope  that 
it  may  be  repeated  in  even  happier  days,  when  the  many 
cares  of  state  may  permit,  or  when  these  shall  have  been 
exchanged  for  the  more  tranquil  pleasures  of  private 
life.  We  trust  that  our  honored  guest  may  be  blessed 
with  health,  strength  and  length  of  days ;  that  his  admin- 
istration may  redound  to  the  best  and  most  lasting 
interests  of  the  country,  and  to  his  own  honor;  that 
after  the  toil  and  responsibility  of  his  great  office  are 
over,  he  may  be  cheered  by  the  approving  voice  of  his 
grateful  countrymen  and  the  serene  consciousness  of 
duty  wisely,  faithfully  and  successfully  performed.  We 
have  the  satisfaction  of  knowing  that  whatever  difficul- 
ties may  arise  we  have  a  strong  man  at  the  helm,  one 
worthy  to  join  in  the  procession  of  the  great  and  illus- 
trious men  who  have  gone  before,  who  have  reaped  the 
reward  of  their  services  in  the  gratitude  of  their  country, 
and  who  have  been  crowned  with  undying  fame. 

The  president  has  lately  achieved  a  result  that  I  believe 
has  had  no  precedent  in  the  past.  By  a  timely  and  tact- 
ful interposition  he  has  been  largely  instrumental  in 
arresting  the  torrent  of  blood  that  deluged  the  soil  of 
another  hemisphere,  and  filled  the  world  with  horror; 
thus  substituting  the  white  banner  of  peace  for  the 
terrible  ensigns  of  war.  If  it  be  true,  as  the  poet  tells 
us,  that 

"Peace  hath  her  victories 

No  less  renowned  than  war." 

here  is  a  victory  that,  as  it  has  not  caused  a  sigh  or  a 
tear,  far  outshines  the  triumphs  of  Blenheim  or  Waterloo. 
May  his  other  successes,  if  not  always  so  resplendent, 
be  such  as  will  always  promote  the  happiness  of 
mankind. 

(The  address  of  Judge  Rose  was  enthusiastically  applauded  at 
intervals,  and  was  heartily  received  by  the  president.) 


IMMUNITY  FROM  CAPTURE  OF 

PRIVATE     PROPERTY     AT 

SEA  IN  TIME  OF  WAR 

Address  at  the  Second  Hague  Conference,  July  5,  1007 


IMMUNITY  FROM  CAPTURE  OF 

PRIVATE     PROPERTY     AT 

SEA  IN  TIME  OF  WAR 

H.  Exc.  M.  Renault ;  third  French  Delegate :  If  these 
views  are,  as  we  believe,  correct,  the  right  of  capture 
appears  to  be  a  measure  directed  by  one  belligerent  state 
against  another  belligerent,  this  measure  forming  a  part 
of  the  operations  by  which  one  state  endeavors  to  reduce 
its  adversary  to  terms,  having  no  particularly  severe 
quality ;  hence  there  is  in  our  opinion  no  sufficient  reason 
for  its  abandonment. 

H.  Exc.  U.  M.  Rose;  Delegate  from  the  United  States 
of  America : 

In  the  addresses  just  delivered  we  have  heard  a  good 
deal  about  the  rights  of  captors  and  belligerents,  tending 
to  show  that  their  rights  are  very  nearly,  if  not  quite, 
commensurate  with  their  might,  but  nothing  that  tends 
to  define  the  rights  of  private  persons  owning  property 
on  the  sea  in  time  of  war;  from  which  it  might  well  be 
inferred  that  the  rights  of  private  persons  to  property  at 
sea  are  a  very  negligible  quantity. 

Just  a  hundred  years  ago  Lord  Brougham  said : 

"The  private  property  of  pacific  and  industrious 
individuals  seems  to  be  protected,  and,  except  in  the 
single  case  of  maritime  capture,  it  is  spared  accord- 
ingly by  the  general  usage  of  all  modern  nations. 
No  army  now  plunders  unarmed  individuals  ashore 
except  for  the  purpose  of  providing  for  its  own  sub- 
sistence. And  the  laws  of  war  are  thought  to  be 
violated  by  the  seizure  of  private  property  for  the 
sake  of  gain,  even  within  the  limits  of  the  hostile 

121 


122  Addresses 

territory.  It  is  not  easy  at  first  sight  to  discover 
why  this  humane  and  enlightened  policy  should  still 
be  excluded  from  the  scenes  of  martime  hostility, 
or  why  the  plunder  of  industrious  merchants,  which 
is  thought  disgraceful  on  land,  should  still  be 
accounted  honorable  at  sea." 

Another  writer  of  distinction  has  said: 

* '  There  is  no  doubt  that  the  widespread  irritation 
occasioned  by  the  capture  of  private  property  at 
sea,  as  much  as  on  land,  is  one  of  the  main  provoca- 
tives of  enduring  national  hatred. ' ' 

His  Excellency,  Mr.  Choate,  has  cited  many  other 
expressions  of  a  similar  character  emanating  from  states- 
men and  jurists  of  the  highest  standing  and  of  different 
nationalities.  I  say  nothing  about  treaties  in  which  the 
principle  for  which  we  contend  was  embodied. 

At  the  very  beginning  of  our  labors,  His  Excellency 
M.  de  Martens,  said  in  his  opening  address,  wisely  and 
appropriately : 

"We  should  now  do  for  maritime  war  what  the 
Second  Commission  of  the  last  Conference  did  for 
war  on  land :  define  the  principles  whose  application 
will  have  for  their  object  the  prevention  of  conflicts 
and  misunderstandings." 

This  is  precisely  what  we  are  striving  to  accomplish 
in  the  pro  jet  now  under  discussion;  that  is  to  say,  we 
seek  to  give  uniformity  to  the  humane  rules  of  warfare 
thus  indicated  as  far  as  they  depend  upon  moral  prin- 
ciples, so  as  to  protect  the  rights  of  non-combatants  at 
sea  as  well  as  on  land. 

The  humane  rule  as  to  the  inviolability  of  unoffending 
private  property  on  land  in  time  of  war,  except  in  cases 
of  contraband  or  of  military  necessity,  though  of  com- 
paratively recent  origin,  resting  as  it  does  on  principles 
of  justice  universally  recognized,  is  now  so  firmly  estab- 


Capture  of  Private  Property  at  Sea      123 

lished  in  the  public  conscience  and  in  international  law 
that  it  is  not  questioned  by  our  friends  on  the  other  side, 
or  by  any  one  else ;  and  it  certainly  is  not  easy  to  see  why 
the  same  rule  shall  not  be  applied  under  similiar  condi- 
tions when  the  property  of  the  innocent  private  owner 
happens  to  be  found  at  sea.  Cicero,  centuries  ago, 
declared  that  the  natural  law  of  justice  is  the  same  at 
Rome,  at  Athens  and  everywhere  else ;  a  saying  that  has 
probably  been  quoted  with  approval  by  every  distin- 
guished modern  writer  on  international  law.  Justice 
does  not  change  with  degrees  of  latitude  or  longitude; 
with  hill  or  plain;  with  times  or  seasons;  nor  does  it 
stop  with  the  land.  To  say,  then,  that  principles  of 
natural  justice,  acknowledged  to  be  controlling  on  land, 
have  no  application  at  sea,  seems  to  us  to  be  in  practice 
an  anomaly  and  in  argument  a  paradox. 

The  theory  suggested  that  wars  are  rendered  less  fre- 
quent and  shorter  by  increased  severity  and  injustice 
is  an  ancient  one  that  has  been  long  since  exploded.  It 
is  closely  akin  to  the  theory  that  criminal  laws  are 
efficient  in  proportion  to  the  terror  which  they  are  calcu- 
lated to  inspire.  In  England,  at  the  close  of  the  18th 
century,  it  was  by  law  made  a  capital  offense  to  steal 
an  article  worth  three  shillings  or  more,  and  the  law 
affixed  the  penalty  of  death  to  160  offenses.  On  the  con- 
tinent a  similar  stringency  prevailed.  The  result  was 
that  when  a  man,  in  an  hour  of  temptation,  had  com- 
mitted a  small  offence,  knowing  that  his  life  under  the 
law  had  become  forfeited,  and  that  no  chance  of  reforma- 
tion was  left,  he  grew  desperate,  became  a  professional 
outlaw,  gathered  evil  doers  around  him,  betook  himself 
to  the  road  or  the  forest,  and  kept  up  a  war  on  society 
in  which  the  principle  of  immunity  of  private  property 
was  not  recognized;  and  if,  in  the  midst  of  his  later 
criminal  career,  one  of  these  robbers  was  finally  caught 
and  executed  under  the  law,  he  was  punished  for  a  thou- 


124  Addresses 

sand  crimes  instead  of  one.  Thus  the  law  defeated  its 
own  ends,  and  multiplied  malefactors.  The  jails  were 
always  filled  with  prisoners ;  the  hangman  was  kept  busy ; 
but  crime  increased,  and  the  courts  were  powerless  in 
their  efforts  to  vindicate  the  majesty  of  the  law. 

So  it  is  with  cruelty  and  injustice  in  the  prosecution 
of  war,  whether  on  sea  or  land ;  and  these  inevitably  tend 
to  render  wars  more  frequent  and  more  prolonged.  We 
admit  that  it  has  sometimes  happened  that  a  conqueror 
has  by  indiscriminate  pillage  and  wholesale  slaughter 
made  a  desert  and  called  it  peace ;  but  that  is  not  the  kind 
of  peace  that  we  are  seeking  to  promote. 

At  the  beginning  of  every  war,  there  is  usually  on 
either  side  a  war  party  and  a  peace  party ;  but  every  act 
of  arbitrary  injustice  by  either  belligerent  naturally 
creates  feelings  of  resentment  on  the  other  side  that 
inure  to  the  benefit  of  the  war  party,  and  to  the  detri- 
ment of  the  peace  party ;  repeated  acts  of  injustice  have 
ultimately  the  effect  to  unite  the  whole  population  in  a 
sentiment  favorable  to  war;  and  in  proportion  to  the 
resentment  thus  created  the  hopes  of  peace  languish  and 
expire. 

In  periods  of  intense  excitement  every  man  is  a  hero 
to  himself ;  and  the  time  comes  when  after  many  wrongs, 
insults  and  indignities  mere  material  interests  vanish 
out  of  sight,  when  human  passion  demands  revenge; 
when  the  individual  is  ready  to  say:  "You  may  con- 
fiscate and  steal  my  property,  you  may  burn  my  house 
and  devastate  my  lands,  but  I  will  no  longer  tamely 
submit  to  repeated  acts  of  injustice  and  insolence;  and 
I  will  stake  my  life  upon  the  result  of  my  endeavors  to 
make  return  in  kind  for  the  exasperating  treatment  that 
I  have  received."  When  the  war  feeling  has  reached 
this  stage  it  is  not  to  be  easily  appeased  or  to  be  silenced 
by  soft  words;  under  such  conditions  even  the  most 
reasonable  proposals  for  reconciliation  are  often  rejected 


Capture  of  Private  Property  at  Sea      125 

with  scorn  and  indignation;  and  thus  the  war  goes  on 
with  its  sanguinary  consequences  until  exhaustion  is 
reached. 

We  have  many  concrete  examples  of  the  fact  that 
injustice  and  cruelty  in  war  do  not  lessen  the  number 
of  wars.  In  ancient  times  wars  were  conducted  with 
much  more  cruelty  and  injustice  than  now ;  and  yet  wars 
were  very  much  more  frequent  than  they  are  at  present. 
Coming  down  to  later  times,  Louis  XIV.  and  his  minis- 
ter Louvois,  prosecuted  war  with  savage  atrocity.  They 
burned  more  than  a  hundred  cities  and  towns  in  the 
Low  Countries ;  they  laid  waste  with  fire  and  sword  the 
rich  and  populous  Palatinate,  and  left  it  a  smoking 
wilderness.  And  yet  the  reign  of  Louis  was  made  up 
of  an  almost  unbroken  succession  of  wars,  until  at  last 
he  had  to  succumb  to  a  combined  opposition  cemented 
by  the  persistent  cruelty  with  which  these  wars  had  been 
waged. 

Do  confiscation  and  cruelty  make  wars  end  the 
sooner?  Let  the  nation  whose  generous  hospitality  we 
now  enjoy  return  the  answer.  The  war  between  Spain 
and  the  Netherlands  was  conducted, — on  the  one  side 
at  least, — with  a  savage  and  ferocious  inhumanity 
almost  unparalleled:  and  yet  no  war  in  modern  times 
ever  lasted  so  long. 

But  it  is  asserted  that  if  the  principle  contended  for 
on  the  other  side  cannot  be  justified  on  moral  grounds, 
it  is  vindicated  by  public  policy,  because  the  liability  to 
seizure  of  private  property  at  sea  has  the  effect  to  com- 
pel the  commercial  class  to  throw  their  influence  on 
the  side  of  peace,  with  a  tendency  to  make  wars  less 
frequent  and  less  prolonged. 

This  argument  seems  to  us  to  be  equally  unsound. 
Wars  are  not  made  or  unmade  in  counting  rooms,  or  by 
boards  of  trade;  and  merchants  are  not  organized  into 
a  separate  class  for  political  purposes.    At  present  there 


126  Addresses 

is  no  commercial  nation  in  the  world  in  the  sense  that 
Genoa  and  Venice  were  formerly  commercial  nations, — 
nations  nearly  destitute  of  manufacturers  and  agricul- 
ture, and  depending  almost  exclusively  on  commerce  for 
national  existence.  In  their  day  when  all  ships  were 
made  of  wood,  a  merchant  vessel  could  easily  and 
rapidly  be  transformed  into  a  man  of  war,  whose  owner 
might  enrich  himself  by  capturing  the  vessels  and  car- 
goes of  the  enemy  in  a  species  of  warfare  differing  but 
little  from  piracy.  At  present  wars  offer  no  such 
resources  to  the  mercantile  trader  or  capitalist.  How- 
ever liberal  you  may  make  the  rules  in  his  favor  he  must 
always  incline  to  peace,  if,  for  no  other  reason,  because 
war  with  its  interruptions  of  communications,  and  its 
blockades  of  ports,  with  its  withdrawal  of  large  bodies 
of  men  from  the  fields  of  production  of  themselves  neces- 
sarily paralyze  commerce ;  and  so  the  merchants  are  the 
last  people  in  the  world  to  encourage  the  war  spirit. 
If  the  case  were  otherwise,  the  commercial  class  having 
interests  at  sea,  though  a  large  and  important  one,  is 
completely  outweighed  by  the  manufacturing,  agricul- 
tural, laboring,  mining,  political  and  other  classes,  so 
that  it  is  reasonably  certain  that  merchants  will  never 
be  important  factors  in  promoting  feelings  that  result 
in  war.  By  the  very  nature  of  their  calling  merchants 
are  the  firmest  allies  of  peace.  They  do  not  need  to 
be  deterred  from  war,  because  in  their  case  war  means 
for  them  only  loss  and  ruin.  And  yet  the  rule  now  in 
force  punishes  the  very  class  that  constitutionally  favors 
peace  and  not  war.  Among  the  many  benefits  conferred 
on  mankind  by  commerce,  one  of  the  most  important  is 
that  it  tends  to  bind  the  nations  together  in  the  bonds  of 
a  common  interest  and  friendship,  thus  preventing  fre- 
quent and  unnecessary  wars.  To  accuse  merchants  of 
being  stirrers  up  of  strife  and  promoting  war,  is  as  unjust 
as  the  principle  in  whose  interest  this  unfounded  charge 


Capture  of  Private  Property  at  Sea      127 

is  made.  To  open  robbery  it  adds  the  iniquity  of 
duplicity  and  false  pretence,  thus  justifying  the  argu- 
ment of  the  wolf  as  set  forth  in  the  fable  of  "The  Wolf 
and  the  Lamb." 

When  war  was  imminent  between  the  United  States 
and  Great  Britain  in  1809,  and  a  preliminary  embargo 
on  commerce  was  laid  by  Congress,  merchants  having 
interests  at  sea  almost  as  one  man  organized  in  favor 
of  peace  and  denounced  all  warlike  preparations  with 
the  utmost  vehemence  and  energy.  Nevertheless  the 
war  came  on,  and  was  fought  to  a  finish;  not  at  the 
instigation  of  merchants  but  against  their  united 
remonstrance. 

If  it  were  true  that  merchants  are  inclined  to  favor 
war  rather  than  peace,  we  cannot  understand  how  this 
fact  can  justify  the  confiscation  of  the  property  of  the 
private  owner  who  is  in  no  wise  responsible  for  the 
opinions  or  conduct  of  the  merchant  who  carries  his 
goods,  and  whom  he  probably  never  saw,  any  more  than 
we  can  understand  why  the  merchant  should  be 
denounced  for  sentiments  that  he  never  entertained. 

But  if  good  policy  and  an  exalted  sense  of  duty  require 
the  support  of  this  predatory  system  at  sea  for  the 
coercion  of  maritime  merchants,  it  would  seem  that  the 
same  preventive  rule  should  be  applied  to  persons  dealing 
with  merchants  on  land,  so  that  all  merchants  should 
alike  be  driven  into  the  orthodox  fold,  not  of  peace 
lovers  only,  but  of  furious  and  fanatical  lovers  of  peace 
who  may  be  willing  to  take  up  arms  and  fight  for  peace 
as  against  their  own  countrymen.  An  international 
millenium  does  not  seem  to  us  to  lie  in  the  direction  of  a 
doctrine  that  in  self  justification  stops  far  short  of  any 
logical  conclusion. 

Even  if  we  should  admit  that  we  are  wrong  in  these 
views,  we  should  still  be  of  the  opinion  that  -the  position 
occupied  by  our  friends  on  the  other  side  is  liable  to  the 


128  Addresses 

most  serious  criticism.  We  are  not  here  to  advocate  the 
practice  of  privateering;  but  privateering  is  certainly 
an  effective  means  of  defense  in  the  hands  of  a  weak 
power  as  against  a  stronger  one.  In  the  war  between 
England  and  America  in  1812  the  commerce  of  England 
sustained  greater  loss  from  American  privateers  than  it 
ever  suffered  in  any  war  before  or  since.  During  our 
Civil  War  the  Confederacy  had  no  navy ;  and  yet,  as  we 
have  been  told  by  His  Excellency  Mr.  Choate,  the  armed 
cruisers  of  Semmes  and  his  coadjutors  swept  the  entire 
American  commerce  from  the  seas.  Nothing  strikes  such 
terror  to  the  merchant  marine  as  the  knowledge  that  a 
Sir  Francis  Drake,  a  Paul  Jones  or  an  Admiral  Semmes 
is  cruising  in  the  open  seas  or  is  lurking  in  the  byways 
and  inlets.  By  the  Treaty  of  Paris  privateering  was 
abolished;  and  our  opponents  justify  that  action  as 
humane  and  just :  but  if  the  object  which  they  say  they 
wish  to  obtain  is  to  intimidate  the  commercial  class  and 
to  disincline  them  from  war,  why  abandon  the  efficient 
means  of  privateering  in  favor  of  a  pitiable  and  ineffi- 
cient policy  which  allows  the  seizure  here  and  there  of 
a  ship  or  a  bale  of  merchandise  belonging  to  an  innocent 
non-belligerent  for  which  neither  the  army  nor  navy 
has  the  slightest  use,  and  which,  if  made  useful  at  all  to 
the  captor,  is  only  worth  the  price  that  it  will  bring  at 
a  remnant  sale?  Why  throw  away  a  most  effective 
weapon  in  favor  of  another  which  is  comparatively 
powerless  and  unavailing?  In  principle  the  policy  con- 
tended for  involves  the  same  incongruity  that  I  have 
heretofore  indicated.  It  abolishes  privateering,  but 
establishes  and  consecrates  the  principle  of  capture  of 
private  property  at  sea, — the  very  principle  on  which 
privateering  is  based,  and  that  for  which  it  is  condemned 
by  our  adversaries  in  the  present  discussion.  It  would 
seem  to  require  no  argument  to  show  that  what  is  injus- 
tice on  land  must  be  injustice  at  sea,  or  that  if  the 


Capture  of  Private  Property  at  Sea      129 

seizure  of  private  property  by  privateers  regularly  com- 
missioned by  the  government  is  wrong  in  principle  and 
deleterious  in  practice,  it  must  be  equally  wrong  and 
injurious  if  the  act  is  done  through  the  agency  of  a 
regularly  equipped  and  commissioned  man  of  war.  The 
immorality  of  the  act  does  not  depend  on  the  agent,  but 
on  the  quality  of  the  act  itself. 

The  principle  for  which  we  contend  is  not  an  especially 
American  doctrine.  It  is  the  doctrine  of  humanity  at 
large ;  one  that  has  received,  and  still  receives,  the  warm- 
est support  of  European  communities,  jurists  and  states- 
men ;  and  we  are  now  only  advocating  the  doctrine  that 
these  have  previously  and  more  forcibly  asserted. 

In  a  very  able  and  thoughtful  editorial  article  in  the 
London  "Tribune"  of  July  1st,  the  editor  reviews  the 
admirable  discourse  made  by  His  Excellency  Mr.  Choate 
in  this  Chamber,  characterizes  the  opposition  to  the  prin- 
ciple for  which  we  contend  as  " bordering  on  the  absurd," 
and  asserts  that : 

"If  it  were  accepted  and  applied  logically  the 
Conference  would  in  fact  be  engaged,  not  in  extend- 
ing but  in  demolishing  the  existing  rules  of 
warfare." 

To  this  I  may  add,  that  it  would  also  be  endorsing  a 
principle  that  would  destroy  much  of  the  good  that  it 
has  previously  accomplished. 

We  are  not  surprised  that  our  contention  should  meet 
with  strenuous  opposition,  or  that  we  should  be  told  that 
it  cannot  be  considered  until  various  other  knotty  ques- 
tions are  discussed  and  settled;  that  the  question  now 
under  discussion  is  not  yet  ripe;  that  it  should  be  put 
off  for  a  more  convenient  season;  and  that  it  is  impera- 
tive that  the  law  of  contraband,  in  particular,  must  first 
be  amply  discussed,  before  taking  up  anything  else, 
though  the  proposition  that  we  endeavor  to  support  has 


130  Addresses 

no  connection  with  the  law  of  contraband  since  it  only 
applies  to  property  not  contraband  by  any  rules  now 
existing  or  that  may  hereafter  be  in  force. 

Nor  are  we  east  down  or  discouraged  by  any  considera- 
tions that  plead  for  delay.  All  great  reforms  have  met 
with  opposition  not  only  from  the  ignorant  and  the  per- 
verse, but  also  from  men  that  were  wise  and  good.  In 
the  present  instance  the  solemn  and  striking  fact  remains 
that  the  principle  that  formerly  justified  wanton  and 
indiscriminate  pillage  on  land,  condemned  alike  by 
humanity  and  by  common  honesty,  has,  like  the  Gadarine 
swine,  been  driven  out  to  sea,  where — "they  aint  no  ten 
commandments, ' '  and  where  they  have  intrenched  them- 
selves, and  have  found  a  sanctuary. 

We  hear  now  for  the  first  time  that  the  rule  that 
forbids  pillage  on  land  was  not  founded  mainly  on 
humanitarian  views,  but  was  adopted  for  the  purpose  of 
preventing  demoralization  among  the  soldiery.  We  are 
aware  that  cynics  have  asserted  that  our  best  actions 
have  their  origin  in  selfish  motives ;  but  we  are  not  willing 
to  accept  a  theory  so  revolting ;  one  that  deprives  virtue 
of  every  ennobling  element  and  denies  to  it  what  is 
often  its  last  and  only  reward,  the  consciousness  of  good 
deeds  honestly  performed. 

H.  Exc.  Sir  Edward  Fry,  first  delegate  of  Great 
Britain  expressed  himself  as  follows: 

I  ask  to  be  heard  on  only  one  of  the  subjects  under 
discussion.  The  American  delegate  whom  we  have  heard 
with  so  much  interest,  has  said  much  about  the  cruelty 
attending  the  exercise  of  the  right  of  capture  of  private 
property.  This  in  my  judgment  is  an  error.  It  is  true 
that  in  all  the  methods  of  war  there  is  something  barbar- 
ous, but  in  all  of  them  there  is  none  so  humane  as  the 
exercise  of  this  right.  Consider,  I  beg  of  you  these  two 
cases:  on  the  one  hand  the  capture  of  a  merchant  vessel 


Capture  of  Private  Property  at  Sea      131 

at  sea,  and,  on  the  other,  the  operations  of  an  armed 
enemy  on  land.  In  the  one  case  we  see  a  superior  force 
against  which  no  resistance  can  be  made ;  no  one  is  killed, 
no  one  is  even  wounded ;  the  proceeding  is  wholly  pacific. 
But  what  do  we  see  in  the  other  instance?  we  see  the 
country  desolated,  cattle  destroyed,  houses  burned, 
women  and  children  fleeing  before  hostile  soldiers,  and 
probably  other  horrors  concerning  which  I  prefer  to  be 
silent.  To  complain  then  of  the  capture  of  merchant 
vessels  at  sea  and  at  the  same  time  to  permit  war  on  land 
is  to  decide  in  favor  of  the  greater  of  two  evils. 

H.  Exc.  Rigo  Rangabe,  first  delegate  from  Greece, 
said: 

Seeing  that  according  to  the  exchange  of  views  that  we 
have  just  heard  concerning  the  American  proposition  as 
to  the  inviolability  of  private  property  in  maritime 
warfare  will  not  receive  a  final  solution  during  the  pres- 
ent conference,  the  Greek  delegation,  wishing  to  indicate 
the  point  of  view  which  the  Royal  Government  is  dis- 
posed to  take  with  regard  to  an  ultimate  settlement  of 
the  question,  merely  desire  to  say  that  they  approve  of 
the  opinions  expressed  by  H.  Exc.  M.  de  Beaufort  in  the 
name  of  the  delegation  from  the  Netherlands  at  the 
beginning  of  this  sitting. 

H.  Exc.  M.  A.  Beernaert,  first  delegate  from  Belgium, 
remarked  that  the  many  and  interesting  opinions 
expressed  demand  a  response ;  but,  owing  to  his  fatigue, 
he  will  ask,  not  an  adjournment  of  the  discussion,  but 
permission  at  some  later  time  to  hear  certain  remarks 
which  he  desires  to  make  if  this  discussion  is  to  be 
continued. 

H.  Exc.  M.  Leon  Bourgois,  first  French  delegate  said : 

The  question  now  under  discussion  is  one  of  the  most 
important  that  has  been  presented  to  the  conference. 
At  its  first  sitting  we  heard  theses  of  an  absolute  char- 
acter ;  and  we  have  heard  to-day  what  I  may  call  relative 


132  Addresses 

theses;  but  we  must  also  remember  that  the  question  of 
immunity  of  private  property  at  sea  depends  on  other 
questions  relating  to  blockade  of  belligerent  ports  and 
the  seizure  of  contraband  of  war.  It  has  been  made  to 
appear  from  the  different  views  presented  that  it  is 
possible  along  these  lines  of  thought  to  render  mari- 
time war  more  humane;  but  does  it  not  seem  that  this 
question  demands  an  additional  session?  (General 
assent.) 

On  motion  of  the  President  the  continuation  of  the 
discussion  is  fixed  for  Wednesday,  July  10,  at  10 :30  a.  m. 

The  sitting  closed  at  5  o'clock,  p.  m. 


ABRAHAM  LINCOLN 

Address  on  the  One  Hundredth  Anniversary  of  President 
Lincoln's  Birth,  Delivered  in  New  York  City. 


ABRAHAM  LINCOLN 

This  day  just  one  hundred  years  ago,  Abraham  Lin- 
coln, only  son  of  Thomas  and  Nancy  Hanks  Lincoln, 
was  born  in  Harden  County,  Kentucky,  in  the  darkest 
and  most  cheerless  season  of  the  year ;  the  very  keystone 
of  the  winter  solstice,  amid  surroundings  dreary  and 
depressing  in  the  extreme.  At  that  time  Kentucky,  one 
of  the  newest  of  the  States,  having  been  admitted  into 
the  Union  in  1792,  was  very  thinly  settled  by  hardy 
pioneers  from  States  east  of  the  Allegheny  Mountains; 
most  of  them  being  natives  of  Virginia,  to  which  State 
the  Territory  of  Kentucky  had  formerly  belonged. 
Hardin  County,  in  the  central  part  of  Kentucky,  where 
Mr.  Lincoln  was  born,  was  then  practically  further  from 
New  York  and  Philadelphia  than  St.  Petersburg  is  now. 
A  journey  thither  from  the  country  east  of  the  Alle- 
gheny Mountains  occupied  many  days,  was  attended 
by  incessant  discomforts,  and  was  exposed  to  perils  of 
many  kinds. 

The  grandfather  of  Abraham  Lincoln,  after  whom  he 
was  named,  emigrated  from  Virginia  to  Kentucky  in 
1782,  and  made  himself  a  home  near  the  site  of  the 
present  city  of  Louisville.  Some  years  later  he  was  shot 
by  an  Indian  from  ambush  and  was  killed.  One  of  his 
surviving  sons  was  Thomas  Lincoln,  who  grew  up  and 
lived  until  his  death  in  the  year  1850  without  ever  hav- 
ing learned  to  read  or  to  write.  He  was  the  father  of 
Abraham  Lincoln,  who  afterwards  became  President  of 
the  United  States. 

There  must  be  many  persons  in  the  world  not  unlike 
Thomas  Lincoln,  whose  life  is  a  long  record  of  continu- 
ous failure ;  though  for  obvious  reasons,  their  names  can 

135 


136  Addresses 

rarely  find  a  place  in  history.  He  remains  one  of  the 
most  conspicuous  of  those  who  drift  through  life  with- 
out aim  or  purpose,  having  apparently  no  grasp  on  the 
practical  affairs  of  life,  destitute  of  ideals  of  every  kind, 
disinclined  to  exertion,  incapable  of  ambition,  accom- 
plishing nothing  very  good  or  very  bad.  He  was  one  of 
the  most  shiftless  and  inert  of  all  those  whose  names 
have  been  in  any  manner  preserved,  extremely  nomadic, 
never  staying  long  in  one  place,  always  mildly  discon- 
tented, always  drifting  hither  and  thither  as  if  by  some 
blind  impulse  or  uncontrollable  instinct.  Wherever  he 
made  a  temporary  stop,  he  erected  a  rude  "camp"  or 
hut,  or  cabin,  made  of  logs,  with  but  scant  regard  either 
for  looks  or  for  comfort,  just  as  an  Arab  would  pitch 
his  tent  wherever  he  meant  to  pass  the  night.  He  was 
an  experienced  and  successful  hunter;  and  the  chase 
was  about  his  only  means  of  obtaining  a  livelihood  for 
himself  and  his  family. 

When  a  young  man  Thomas  Lincoln,  no  doubt  on  the 
urgent  advice  of  his  family,  resolved  to  learn  the  car- 
penter's trade;  and  so  one  day  he  entered  the  shop  of 
Joseph  Hanks  at  Elizabethtown,  then  an  insignificant 
hamlet  in  Hardin  County,  Kentucky,  for  that  purpose. 

Among  other  claims  to  respect  and  attention,  Joseph 
Hanks  had  a  niece  named  Nancy  Hanks,  living  across 
the  line  in  Washington  County;  a  young  woman  of 
twenty-three,  frail  in  appearance,  but  pretty,  as 
described  by  those  who  knew  her  when  she  was  blooming 
in  her  brief  spring  of  life  more  than  a  hundred  years 
ago.  Sometimes  this  young  woman,  who  was  a  penniless 
orphan,  living  with  her  relations,  and  dependent  on  them 
for  support,  visited  her  uncle  and  his  family  at  Eliza- 
bethtown; and  there  she  met  Thomas  Lincoln.  The 
couple  found  favor  in  each  other's  eyes;  and  so  they 
were  married  with  much  rustic  parade  and  ceremony, 
amid  great  rejoicing  and  amid  meagre  prospects,  at  the 


Abraham  Lincoln  137 

house  of  the  bride,  all  in  the  summer  weather,  on  the 
12th  day  of  June,  1806. 

One  of  the  contemporaries  of  the  bride  says: 

"Her  hair  was  dark,  her  eyes  were  gray,  her  fore- 
head was  high,  and  her  demeanor  was  reserved  and  sad. 
However,  in  that  primitive  region,  where  there  were 
scarcely  any  schools  even  for  the  better  order  of  people, 
she  had  picked  up  considerable  education.  She  was  intel- 
lectual in  her  ambition  and  tendencies,  and  she  had  an 
excellent  memory,  good  judgment,  and  a  fine  sense  of 
propriety.  Her  nature  seems  to  have  been  conserva- 
tive rather  than  aggressive.  Although  her  ambition 
was  above  her  surroundings  and  apparent  destiny,  she 
seemed  to  have  considered  her  humble  lot  and  condition 
in  life  to  be  inevitable,  and  to  have  made  no  radical 
effort  to  change  it,  resting  content  in  faithfully  per- 
forming her  wifely  and  motherly  duties." 

There  is  no  reason  to  suppose  that  Thomas  Lincoln 
was  willingly  unkind  to  the  wife  who  had  entrusted  her 
destiny  to  his  keeping.  So  far  as  known  he  was  good 
natured,  popular  with  his  neighbors,  sociable  and  some- 
what jocular  in  temperament,  given  to  telling  anecdotes 
after  the  fashion  of  his  illustrious  son,  his  real  and 
supreme  fault  being  that  he  was  careless  to  the  very  last 
degree,  incapable  of  taking  any  more  thought  of  to- 
morrow than  if  it  were  an  authenticated  fact  that  to-mor- 
row would  never  come. 

The  newly  married  pair  went  to  housekeeping  in  a  log 
cabin  fourteen  feet  square,  at  Elizabethtown ;  and  there 
in  the  following  year  a  daughter  was  born  to  whom  they 
gave  the  name  of  Sarah,  destined  to  be  the  playmate  and 
the  companion  of  the  future  President  for  years;  one 
that  he  loved  and  whose  memory  he  cherished  to  his 
latest  hour  with  extreme  devotion. 

Thomas  Lincoln  soon  afterwards  bought  a  small  piece 
of  ground,  partly  cleared,  within  three  miles  of  another 


138  Addresses 

hamlet  in  Hardin  County,  called  Hodgensville,  on  which 
plot  was  situated  another  log  cabin  quite  as  small  and 
uncomfortable  as  that  which  he  had  just  abandoned. 
The  land  thus  purchased  was  so  thin,  poor,  stony  and 
barren  that  it  was  hardly  susceptible  of  cultivation ;  but 
little  better  than  waste  land  at  best. 

The  situation  could  hardly  have  been  more  depressing. 
The  cabin  was  but  little  more  than  a  shanty,  built  of 
unhewn  logs,  a  mere  wart  on  the  bleak  hillside,  in  the 
midst  of  a  small  clearing  with  scattered  stumps  of  trees, 
where  but  lately  the  primeval  forest  had  stood  in  its 
proud  array.  It  contained  at  that  time  only  a  small 
square  unglazed  window,  a  door,  across  which  a  deer 
skin  was  hung  in  order  to  keep  out  the  wind  and  the 
rain,  which  descended  pretty  freely  down  an  enormous 
outside  chimney,  built  of  sticks  and  mud,  hugely  dis- 
proportioned  in  size  to  the  slouching  and  ungainly 
structure  against  which  it  leaned  for  support.  This 
chimney,  which  seemed  to  be  reeling  on  its  foundation, 
only  reached  about  half  way  from  the  ground  to  the 
ridge  of  the  roof.  The  interior  of  the  building  corre- 
sponded very  well  with  the  exterior.  The  floor  was  fire- 
proof, being  made  of  nothing  more  combustible  than 
our  mother  earth.  The  furniture  was  of  the  rudest  and 
simplest  kind,  even  when  judged  by  the  fashions  of  the 
time  and  place.  The  bed  was  made  of  poles  inserted 
in  the  cracks  between  the  logs  in  one  corner  of  the 
cabin  coverging  on  a  forked  branch  of  a  tree,  the  lower 
end  of  which  was  firmly  set  in  the  solid  ground.  The 
mattress  was  made  of  coarse  cloth,  filled  with  dry  leaves, 
or  husks  of  Indian  corn.  The  bed  covers  were  mostly 
skins  of  animals,  domestic  or  wild.  The  table  was  con- 
structed of  a  half  section  of  a  huge  log  of  wood,  split 
open  in  the  middle,  set  on  four  stout  legs,  with  the  flat 
side  turned  upward.  There  was  a  bench  with  two  or 
three  stools,  all  made  in  the  same  manner,  and  without 


Abraham  Lincoln  139 

backs.  We  may  suppose  that  at  that  inclement  season 
a  cold  rain  may  have  been  falling,  or  that  the  earth 
was  wrapped  in  a  mantle  of  snow.  Certainly  the  cabin 
afforded  but  little  protection  against  the  wind  that  fre- 
quently howled  along  the  desolate  hillside,  passing  in 
and  out  through  the  spaces  between  the  logs,  and  between 
the  rough  and  clattering  boards  on  the  roof,  as  freely 
as  it  would  have  done  through  a  picket  fence.  The 
gaping  fireplace  in  which  at  this  season  huge  logs  were 
piled,  served  equally  for  the  admission  of  light,  for 
cooking,  and  for  household  warmth.  The  culinary 
utensils  consisted  of  a  few  kettles  and  pans,  with  some 
pewter  plates,  and  a  few  knives  and  forks,  all  of  the 
cheapest  description. 

Such  was  the  humble  abode  of  stern  and  undisguised 
poverty,  where  luxury  would  never  lull  idleness  to 
sleep,  where  freaks  of  fashion  would  find  no  stage  of 
action,  and  pride  could  collect  no  trophies.  Compared 
with  this  habitation,  the  tents  of  the  Indians  who  had 
lately  roamed  through  the  country  were  in  a  high  degree 
picturesque  and  comfortable.  Knowing  the  habits  of 
Thomas  Lincoln  as  we  do,  it  is  safe  to  conjecture  that 
on  the  day  of  which  this  is  the  anniversary  there  was 
not  food  enough  in  the  house  to  last  three  days.  It  is 
hard  for  us  who  live  in  happier  times  to  have  a  con- 
ception of  an  isolated  cabin  in  the  wilderness,  so  lonely, 
so  unadorned,  so  comfortless,  where  no  postman  ever 
called,  where  no  newspaper  or  periodical  was  ever  seen, 
where  a  random  letter  caused  such  apprehension  of  ill 
tidings,  and  formed  an  epoch  from  which  dates  were 
counted;  a  spot  contrasted  with  which  the  "lonely 
moated  grange"  of  Mariana  was  a  palace  of  delight,  a 
scene  of  gayety  and  revelry. 

The  unfathomable  mystery  and  marvel  of  the  birth  of 
a  child  in  this  cheerless  and  solitary  hut,  and  amid  such 
sordid  conditions,  was  not  a  thing  to  invite  much  atten- 


140  Addresses 

tion.  There  was  no  blowing  of  trumpets,  no  beating  of 
drums,  or  thundering  of  cannon,  no  singing  of  anthems, 
or  burning  of  incense ;  not  a  flower  was  blooming  on  the 
barren  waste,  not  a  bird  was  chirping  in  the  leafless  trees. 
In  the  widespread  barrenness  and  universal  desolation  of 
the  winter  scene,  this  birth  had  about  it  something  of 
the  sadness  and  solemnity  which  we  usually  associate 
with  the  idea  of  death.  The  very  beginning  of  life 
seamed  almost  a  tragedy. 

The  ordinary  observer  might  plausibly  have  drawn  a 
horoscope  of  the  newly  arrived  stranger  within  certain 
limits  with  great  facility.  Amid  the  privations  and 
exposure  of  the  rude  and  wild  frontier  the  child  would 
hardly  attain  to  manhood,  or  if  he  did,  lacking  both 
training  and  education,  his  would  be  the  common  lot,  or 
even  something  worse;  and  so  he  would  eventually  die, 
"unwept,  unhonored  and  unsung."  Such  was  the  rea- 
sonable inference;  but  in  the  providence  of  God  it  was 
to  be  otherwise. 

From  the  wretched  cabin  on  the  hillside,  open  to  the 
wind  and  the  rain  to  the  palatial  mansion  where  the 
nation  honors  its  chief  magistrate,  the  journey  is  long 
and  uncertain.  Many  men  of  high  talents  and  of 
resplendent  attainments  have  essayed  it  in  vain,  though 
in  some  instances  a  large  following  and  great  enthusi- 
asm seemed  to  guarantee  success.  The  barefoot  boy, 
destitute  alike  of  family  influence,  of  wealth,  of  power- 
ful friends,  without  that  grace  of  personal  appearance 
that  conciliates  favor  at  first  sight,  without  education, 
would  have  seemed  to  be  cut  off  from  all  dreams  of  com- 
petition for  such  a  shining  prize. 

In  1816  Thomas  Lincoln  removed  to  Indiana.  He 
and  his  wife  traveled  on  foot  while  the  two  children, 
aged  respectively  seven  and  nine,  with  various  articles 
of  personal  property,  were  transported  on  two  borrowed 
horses. 


Abraham  Lincoln  141 

With  characteristic  want  of  foresight,  Thomas  Lincoln 
had  put  off  his  flight  until  late  in  the  autumn,  when  the 
weather  was  cold ;  and,  as  all  the  family  were  but  poorly 
clad,  and  indeed  were  in  rags,  the  discomforts  of  the 
journey  can  hardly  be  imagined  in  these  days  of  rail- 
ways and  auto-cars. 

Without  domestic  animals  of  any  kind,  and  without 
any  assistance  except  from  members  of  his  family, 
Thomas  Lincoln  began  life  again  on  what  was  known  as 
Pigeon  Creek,  by  building  what  was  called  a  ' '  camp  " ;  a 
hut  made  of  poles  pinned  to  trees  with  wooden  pegs,  the 
whole  forming  a  small  half-house  with  one  side  wholly 
open,  so  as  to  front  a  huge  fire  of  logs,  to  be  used  alike 
for  cooking  and  for  comfort.  In  this  uninviting  hovel, 
exposed  to  all  the  vicissitudes  of  the  weather,  the  family 
remained  an  entire  year.  On  the  arrival  of  spring,  they 
all  went  out  to  clear  a  plot  of  ground  for  a  farm.  The 
father  cut  down  the  trees,  and  the  mother  chopped  off 
the  smaller  branches,  while  the  children  helped  to  drag 
the  brush  into  piles  for  the  purpose  of  burning  them. 
Among  the  four  there  was  not  a  single  pair  of  shoes. 
When  at  last  a  cabin  was  built  it  was  constructed  on  a 
plan  no  better  and  no  worse  than  the  one  they  had  last 
occupied  before  removing  to  their  new  abode,  with  the 
exception  of  one  addition,  made  afterwards,  consisting 
of  a  loft,  which  might  be  reached  by  a  perpendicular  row 
of  pegs  driven  into  the  wall,  up  which  the  future  Presi- 
dent used  to  climb  in  evenings,  in  order  to  sleep  in  a 
bed  made  of  loose  dry  leaves. 

And  now  comes  the  saddest  part  of  the  strange  history. 
The  land  that  had  been  thus  selected  was  quite  as  barren 
as  that  which  Thomas  Lincoln  had  left  in  Kentucky. 
The  cabin  has  vanished  long  ago,  and  the  land  remains 
uncultivated  to  this  day ;  though  the  country  has  become 
thickly  settled.  To  make  matters  worse,  that  district  of 
country  was  extremely  sickly,  the  population  being  sub- 


142  Addresses 

ject  to  a  very  mysterious  and  dangerous  malady  known 
as  the  milk  sickness,  which  attacked  cattle  and  human 
beings  alike.  Soon  after  Thomas  Lincoln  and  wife 
arrived  at  Pigeon  Creek,  they  were  followed  by  an 
uncle  and  an  aunt  of  hers  from  Kentucky.  In  less  than 
two  years  from  the  first  settlement  of  Thomas  Lincoln 
in  this  fatal  spot,  his  wife  and  her  uncle  and  aunt  all 
died  of  this  dreadful  disease. 

Nothing  can  better  illustrate  the  loneliness  and  soli- 
tude of  this  lodge  in  the  wilderness  than  what  then  hap- 
pened. Thomas  Lincoln  with  the  aid  of  a  neighbor  and 
a  whip-saw,  constructed  coffins  for  the  dead  out  of  the 
trees  of  the  forest;  much  coarser  receptacles  "than  those 
in  which  fruit  trees  are  transported  by  nurserymen  at 
this  day,"  and  in  those  the  dead  were  buried,  "without 
ceremony,  unanointed  and  unaneled.,, 

Sad  and  mournful  must  have  been  the  parting  of  the 
mother  from  her  children  amid  the  desolate  and  heart 
breaking  scenes  that  surrounded  her  dying  bed.  Other 
women  have  lived  lives  of  disappointment,  suffering  and 
sorrow ;  but  few  are  the  figures  that  reappear  out  of  the 
dark  and  sombre  past  more  affecting  or  pathetic  than 
that  of  the  mother  of  Abraham  Lincoln. 

When  Abraham  Lincoln  had  attained  to  sufficient  dis- 
tinction in  later  years  to  attract  attention,  he  had  been 
burdened  with  another  great  sorrow.  His  sister,  almost 
his  only  playmate  for  years  in  the  lowly  habitations 
where  he  had  grown  up,  and  who,  at  the  age  of  eighteen 
had  married  one  Aaron  Grigsby,  had  died  in  childbirth, 
a  year  later.  Remembering  those  sorrows,  intensified  by 
loneliness  and  solitude,  we  cannot  be  surprised  that 
always  afterwards  Mr.  Lincoln's  countenance,  when  in 
repose,  wore  an  expression  of  pain  and  sadness. 

When  the  uncle  and  aunt  of  Mr.  Lincoln  died,  they 
left  a  son  named  Dennis  Hanks,  about  the  age  of  young 
Lincoln ;  and  he  at  once  became  a  member  of  the  Lincoln 


Abraham  Lincoln  143 

family;  now  in  a  sad  condition  of  bereavement.  It  can 
hardly  be  supposed  that  Thomas  Lincoln  would  be  a 
very  popular  candidate  for  a  second  matrimonial  alli- 
ance; but  he  bethought  himself  of  an  expedient.  In  his 
youth  he  had  had  a  love  affair  at  Elizabethtown  with 
Miss  Sallie  Bush,  who  had,  however,  married  one  John- 
ston, who  had  afterwards  died,  leaving  three  children, 
the  oldest,  John  Johnston,  being  nearly  of  the  same  age 
as  Abraham  Lincoln,  the  two  younger  being  girls. 

Having  waited  the  conventional  period  of  one  year, 
Thomas  Lincoln  turned  up  at  his  old  home  in  Elizabeth- 
town  one  afternoon.  The  next  day  he  was  duly  married 
to  the  lady  of  his  former  love.  The  bride,  being  pos- 
sessed of  various  articles  of  useful  household  furniture 
which  she  wished  to  transfer  to  her  new  home  on  Pigeon 
Creek,  Thomas  Lincoln  borrowed  a  wagon  and  four 
horses  from  a  brother-in-law,  loaded  it  up  with  these 
impedimenta,  and  with  his  wife  and  three  children, 
they  made  their  way  in  grand  style  to  the  cabin  and  the 
small  clearing  in  Indiana. 

The  new  wife  turned  out  to  be  just  the  thing  most 
needed  in  that  forlorn  retreat.  She  was  endowed  with 
a  remarkable  share  of  energy,  discretion  and  practical 
sense.  Out  of  her  two  feminine  eyes  she  saw  the  world 
in  about  the  proper  light ;  and  best  of  all,  her  motherly 
heart  was  over  flowing  with  genuine  love  and  kindness. 
Taking  all  the  children  into  her  affection,  she  never 
afterwards  showed  the  least  difference  in  her  conduct 
towards  them,  but  sympathized  with  them  all  alike  in 
their  joys  and  their  sorrows.  Her  beneficial  influence 
was  at  once  felt  in  the  improvement  of  the  surroundings ; 
though,  of  course,  Thomas  Lincoln  could  no  more  change 
his  character  than  a  leopard  can  change  his  spots.  No 
mother  could  be  more  beloved  than  she  was  by  her  step- 
son, who  was  equally  beloved  and  cherished  by  her.  She 
lived  to  see  him  President  of  the  United  States;  a  thing 


144  Addresses 

that  no  human  being  a  few  years  before  could  ever  have 
dreamed  of. 

No  sooner  had  the  second  Mrs.  Lincoln  been  installed 
in  the  uninviting  cabin  on  Pigeon  Creek  than  she  made 
her  presence  felt  in  many  visible  ameliorations  and 
improvements.  A  "shutter"  was  soon  found  on  the 
doorway  where  lately  the  deer  skin  had  hung;  and  in 
many  ways  she  proceeded  to  improve  the  bare  and  bleak 
surroundings.  A  warm  mutual  attachment  speedily  grew 
up  between  her  and  all  the  children  not  of  her  own 
family.  Long  after  young  Abe  had  grown  up,  and  had 
gone  away,  she  used  to  say  of  him,  "He  was  the  best 
boy  that  I  ever  saw,  or  ever  expect  to  see. ' '  Mr.  Lincoln 
always  spoke  of  her  in  tones  of  the  most  affectionate  love 
and  gratitude. 

There  is  something  so  singular,  romantic  and  inter- 
esting in  the  life  of  Mr.  Lincoln  that  there  have  already 
been  printed  about  900  copyrighted  biographies  devoted 
to  that  subject ;  a  fact  perhaps  unparalleled  in  literature. 

I  think  that  I  may  safely  infer  that  you  are  all  fam- 
iliar at  least  with  the  main  outlines  of  his  life;  and 
hence  I  will  pass  on  without  further  delay  to  the  con- 
sideration of  the  other  matters  which  I  trust  may 
probably  be  less  familiar,  though  probably  not  more 
instructive. 

Mr.  Thomas  Lincoln,  the  father  of  Abraham  Lincoln, 
was  emphatically  "a  man  of  one  book";  but  not  a  man 
to  be  dreaded  in  any  controversy  on  that  account;  for 
he  could  not  read  a  word  of  it.  That  book  was  the 
accepted  English  version  of  the  Bible.  No  doubt  his 
son  was  taught  his  letters  by  his  mother  when  he  was 
still  in  his  infancy,  after  which  he  went  to  country 
schools  in  the  woods  in  a  desultory  and  interrupted  way 
for  less  than  a  year  in  all.  In  the  meantime  he  got  hold 
of  another  book  written  in  biblical  style,  Bunyan's 
Pilgrim's  Progress ;  and  certainly  if  he  could  have  hunted 


Abraham  Lincoln  145 

through  the  whole  range  of  literature  he  could  not  have 
found  better  models  of  English  composition  for  imitation 
than  these  deep  wells  of  English,  pure  and  undefiled. 
It  may  be  doubted  whether  the  boy  was  not  better  off 
with  these  two  books  than  he  would  have  been  with 
the  thousands  of  picture  books  and  fairy  tales  with  which 
childhood  is  now  barricaded. 

Perhaps  these  two  books  had  much  to  do  in  forming 
the  written  and  spoken  style  which  Mr.  Lincoln  after- 
wards developed;  a  style  so  clear  and  limpid  as  to  be 
utterly  transparent;  a  style  simple,  idiomatic,  personal, 
compact,  terse,  picturesque  and  urgent  in  the  highest 
degree,  often  epigrammatic  and  eminently  suggestive; 
hardly  inferior  to  that  of  any  writer  or  speaker  of  his 
day.  When  President  he  had  in  his  cabinet  men  of  the 
highest  literary  education  and  training,  Seward,  Chase, 
Stanton  and  Bates,  eloquent  and  forcible  writers  and 
speakers ;  and  yet  neither  of  them,  nor  all  of  them  collec- 
tively, could  have  written  the  Gettysburg  address,  or 
either  of  the  inaugural  addresses  of  Mr.  Lincoln  any 
more  than  they  could  have  written  "Paradise  Lost." 
The  questions  which  Mr.  Lincoln  discussed  have  already 
turned  the  corner  that  leads  to  oblivion ;  and  yet  his 
speeches  and  his  papers  are  still  read  with  the  deepest 
interest  on  account  of  the  clearness  and  lucidity  of  the 
medium  in  which  his  thoughts  are  conveyed. 

Mr.  Lincoln's  intellectual  development  was  not  rapid. 
He  was  a  constant  reader  and  a  laborious  student  who 
gave  much  time  to  the  study  of  the  law,  and  of  the 
history  of  his  country.  Reading  slowly,  he  assimilated 
what  he  read,  and  would  never  leave  a  subject  until  he 
had  mastered  it.  In  literature  his  favorite  author  after 
arriving  at  manhood  was  Shakespeare,  in  whose  display 
of  titanic  and  elementary  passions,  and  in  whose  varied 
and  wonderful  creations  he  found  perpetual  food  for 
thought. 


146  Addresses 

It  may  be  regarded  as  strange  that  though  Lincoln 
grew  up  to  be  a  tall,  strong  and  active  boy,  and  though 
the  country  was  full  of  game,  he  never  engaged  in  the 
sport  of  hunting,  though  such  was  the  regular  vocation 
of  his  father.  The  explanation  may  lie  in  the  fact 
that  he  was  kept  pretty  constantly  at  work ;  a  conclusion 
that  may  be  inferred  from  the  circumstance  that  after 
the  removal  of  the  family  to  Illinois,  his  father  some- 
times hired  him  out  to  labor  for  others  at  the  rate  of 
twenty-five  cents  per  day.  The  probability  would  seem 
to  be  that  the  youth  spent  most  of  what  little  spare 
time  he  had  in  reading  and  studying. 

There  is  another  fact  more  singular,  and  which  even 
the  moral  training  of  his  excellent  step-mother  cannot 
wholly  account  for.  Lincoln  in  his  youth  and  early 
manhood  was  constantly  associated  with  young  men  of 
his  own  age  having  the  rude  manners  and  habits  of  the 
frontier,  habitually  given  to  drinking,  gambling  and 
horse  racing;  and  who  were  sometimes  violent  and  law- 
less; and  yet  he  never  contracted  any  of  these  con- 
tagious vices.  Near  the  close  of  his  career  he  said  that 
he  had  never  taken  a  drink  of  spirits  in  his  life,  or  used 
tobacco  in  any  form. 

Though  the  intellectual  development  of  Mr.  Lincoln 
was  surprising,  his  character,  which  was  of  Doric  sim- 
plicity, displayed  a  remarkable  uniformity  through  life. 
Often  the  case  is  far  otherwise.  Nero,  we  are  told,  wept 
when  called  on  to  sign  his  first  death  warrant.  The 
latter  part  of  the  life  of  the  Emperor  Augustus  was  so 
much  better  than  the  first  part,  that  when  he  died  it 
was  commonly  said  that  it  would  have  been  happy  for 
the  Roman  people  if  he  had  never  been  born,  or  if  he 
had  lived  forever. 

No  such  changes  were  visible  in  Mr.  Lincoln.  Whether 
in  a  hovel  or  in  a  palace,  in  a  court  room,  or  in  Congress, 
the  essential  traits  of  his  character  remained  unchanged 


Abraham  Lincoln  147 

through  all  the  vicissitudes  of  a  most  eventful  life.  At 
first  he  seemed  destined  to  drift  about  without  aim  or 
purpose,  much  as  his  father  had  done;  hiring  himself 
out  to  clear  land,  to  split  rails,  to  work  in  the  fields,  in 
short,  to  do  anything  that  could  be  expected  from  a  robust 
young  man  of  scant  education.  Among  other  things  he 
hired  himself  as  a  man  of  all  work  on  a  flat  boat  loaded 
with  merchandise  for  New  Orleans,  then  the  largest 
city  in  the  United  States,  for  the  compensation  of  eight 
dollars  a  month.  Then  he  turned  up  as  captain  of  vol- 
unteers in  the  Black  Hawk  War,  where  he  first  met 
Jefferson  Davis,  Zachary  Taylor  and  Robert  Anderson; 
the  latter  one  day  to  command  Fort  Sumter  in  Charles- 
ton Harbor;  none  of  them  foreseeing  the  great  things 
that  were  to  happen  in  their  time,  and  in  which  they 
were  to  play  leading  parts. 

Of  all  the  great  men  that  have  ever  lived  Mr.  Lincoln 
was  undoubtedly  one  of  the  most  intensely  human  and 
one  of  the  most  original.  The  thread  of  his  life  is  one 
that  can  never  be  taken  up  by  any  one  hereafter,  and 
probably  no  one  will  ever  undertake  to  imitate  a  char- 
acter so  much  out  of  the  common  run.  The  only  way 
to  imitate  him  would  be  to  be  original;  and  that  would 
be  not  to  imitate  him  at  all. 

In  order  to  understand  the  career  and  the  mission  of 
Mr.  Lincoln,  it  is  absolutely  necessary  to  understand  the 
political  principles  on  which  his  action  was  founded ;  for 
he  was  undoubtedly  a  man  of  principles,  and  not  a  man 
of  expedients.  You  may  read  all  his  writings  and 
speeches  through  without  finding  a  trace  of  the  spurious 
and  insincere  appeals  to  passion  and  prejudice  that  give 
color  to  the  effusions  of  the  cheap  demagogue  of  modern 
times. 

Mr.  Lincoln  in  his  speeches  frequently  referred  to  the 
Declaration  of  Independence,  with  expressions  of  admira- 
tion for  the  principles  embodied  in  that  instrument. 


148  Addresses 

In  the  long  disputes  concerning  slavery,  one  class  of 
the  disputants  referred  to  the  Constitution  of  the  United 
States,  which  expressly  recognized  slavery,  while  the 
other  always  referred  to  the  Declaration  of  Independence, 
which  declared  that  all  men  are  born  free.  Thus  the  dis- 
putants had  a  double  standard,  and  the  two  standards 
did  not  agree,  though  generally  admitted  to  be  of  equal 
value. 

At  the  time  of  the  adoption  of  the  Declaration  of 
Independence,  Washington,  Jefferson,  Madison,  Pendle- 
ton, and  all  the  leaders  of  public  opinion  in  Virginia 
were  opposed  to  slavery,  and  believed  that  it  must 
come  to  an  end  at  no  distant  day.  Mr.  Clay  was  later 
of  the  same  opinion.  In  writing  the  Declaration,  Jeffer- 
son felt  that,  standing,  as  it  were,  on  a  mountain  top, 
he  was  addressing  not  only  the  world  at  large,  but  also 
all  future  generations  to  the  very  end  of  time.  He  found 
here  a  priceless  opportunity  to  proclaim  a  complete  code 
of  human  liberty  in  a  few  words,  suited  to  all  ages  and 
to  every  clime,  the  equality  of  all  men  before  the  law, 
and  the  inalienable  right  of  the  people  to  change  their 
forms  of  government.  Regarding  slavery  as  only  a 
temporary  evil,  he  simply  ignored  it.  At  that  time 
slavery  still  existed  in  twelve  out  of  thirteen  of  the 
colonies.  The  question  as  to  emancipation  had  not  as 
yet  assumed  a  sectional  aspect.  Morally  the  institution 
was  looked  on  favorably  by  the  great  majority  of  the 
people.  Many  thought  that  the  slaves  were  better  off 
in  a  state  of  servitude  than  they  were  among  the  can- 
nibal tribes  in  Africa,  where  every  man  was  the  slave 
of  some  chief,  and  the  victim  of  many  cruel  supersti- 
tions. Besides,  the  condition  of  the  working  classes  at 
that  time  in  the  Old  World  was  but  little  better  than 
African  slavery;  and  in  many  cases  it  was  even  worse, 
since  famine  and  starvation  were  added  to  the  wretched- 
ness of  the  lower  classes. 


Abraham  Lincoln  149 

As  to  the  Declaration  of  Independence  at  the  time  of 
the  Lincoln  and  Douglas  debates,  many  and  diverse 
opinions  had  been  expressed.  Very  commonly  it  was 
said  that  the  general  principles  announced  in  the  Declara- 
tion were  mere  abstractions ;  this  by  persons  who  did  not 
consider  that  the  abstract  and  the  concrete  walk  through 
this  world  hand  in  hand. 

During  the  decline  of  the  Roman  Empire,  a  church 
council  was  held  in  Borne  to  ascertain  and  to  declare 
authoritatively  the  nature  of  Christ.  So  intently  did  its 
members  engage  in  the  discussion  that  they  did  not 
hear  the  barbarians  thundering  at  the  gates  of  the  city. 
It  was  finally  agreed  that  the  personality  of  Christ  con- 
sisted of  two  natures,  one  divine  and  the  other  human. 

Secularly  speaking  this  was  the  merest  abstraction  that 
could  be  imagined;  and  yet  it  changed  the  whole  cur- 
rent of  history  for  more  than  a  thousand  years.  The 
decree  may  have  established  the  divinity  of  the  church ; 
but  it  said  nothing  about  the  divinity  of  kings;  never- 
theless it  was  seized  on  to  support  the  assertion  that 
kings  are  divinely  appointed  by  miraculous  selection; 
that  they  are  divinely  directed  in  every  act;  that  they 
can  do  no  wrong;  that  however  seemingly  wrong  a 
king's  actions  may  be,  the  only  duty  of  his  subjects 
consists  in  passive  and  implicit  obedience,  under  penalty 
of  temporal  and  eternal  punishment;  that  if  royal  rule 
is  tyrannical,  it  is  only  because  God  means  for  some 
wise  and  benevolent  purpose  to  chastise  his  wicked  and 
rebellious  sinners  by  means  of  his  vice-regent  on  earth. 

Such  was  the  doctrine  that  was  almost  universally 
taught  and  believed  throughout  continental  Europe,  and 
in  England  until  the  revolt  in  the  reign  of  Charles  I., 
and  which  largely  survived  that  stormy  period. 

We  may  judge  of  the  profound  hold  that  the  doctrine 
of  the  divine  right  of  kings  and  the  duty  of  passive 
obedience  acquired  over  the  minds  of  men  by  two  singu- 


150  Addresses 

lar  incidents.  As  late  as  the  eighteenth  century  the 
'Scotch,  though  puritans  of  the  most  advanced  type, 
whose  resentment  against  the  Roman  Catholic  Church 
was  so  inveterate  and  intense  that  the  term  Anti- 
Christ  was  the  mildest  name  they  had  for  the  Pope; 
yet  when  the  Roman  Catholic  Pretenders  invaded  Scot- 
land in  1745,  they  enlisted  under  their  banner  because 
they  did  not  dare  to  refuse  the  call  of  the  Lord's 
anointed. 

When  this  dark  cloud  of  king  worship  settled  over 
Europe,  all  real  progress  was  at  an  end,  and  a  general 
and  stupefying  stagnation  ensued  that  lasted  for  cen- 
turies, during  which  nothing  was  invented  and  no  book 
of  any  value  was  written.  The  king,  taught  from  the 
cradle  that  he  could  do  no  wrong,  had  small  induce- 
ment to  do  right.  Looking  on  common  men  as  inferior 
beings,  he  saw  them  slaughtered  in  battle  without  pity 
or  compunction,  and  usually  made  his  life  a  succession 
of  acts  of  tyranny  and  crime;  hence  wars  were  almost 
incessant,  public  morals  were  corrupted,  and  the  world 
sank  deeper  and  deeper  into  ignorance  and  gloom. 
Royal  villainy,  so  to  speak,  had  become  canonized;  the 
vice-gerent  of  God  on  earth  set  the  worst  example  pos- 
sible to  the  rest  of  mankind. 

It  was  against  these  inveterate  and  desperate  evils 
that  the  Declaration  of  Independence  was  directed.  In 
the  eyes  of  Mr.  Lincoln,  that  fulmination  was  neither 
an  abstraction  nor  "a  string  of  glittering  generalities," 
as  had  been  frequently  asserted.  It  was  a  new  evangel, 
intended  not  only  for  the  emancipation  of  America  from 
the  tyranny  of  George  III.,  but  for  the  emancipation 
of  the  human  race  from  every  form  of  tyranny;  and  it 
was  in  that  sense  that  it  was  understood  by  Mr.  Lincoln 
when  he  paraphrased  and  condensed  it  by  speaking  of 
a  government  of  the  people,  by  the  people  and  for  the 
people,  just  as  the  French  had  paraphrased  it  three- 


Abraham  Lincoln  151 

quarters  of  a  century  earlier  in  their  watchword,  "Lib- 
erty, Equality,  Fraternity."  In  every  instance  the 
meaning  was  the  same. 

Considering  the  situation  of  the  world  in  1776,  the 
words  in  the  Declaration  of  Independence  were  of  the 
weightiest  that  ever  fell  from  uninspired  lips.  They 
summed  up  in  a  few  words  the  principles  announced  in 
the  Magna  Charta,  and  in  the  various  English  petitions 
and  bills  of  rights,  with  much  more  besides.  "We  can 
see  this  much  more  clearly  than  Mr.  Lincoln  could  in 
his  day.  The  charters  under  which  the  colonies  were 
organized  accustomed  the  American  colonists  to  govern- 
ment defined  in  written  instruments,  thus  leading  to 
written  constitutions  based  on  the  will  of  the  people, 
guarantying  the  rights  of  the  people.  In  the  rest  of  the 
world,  save  in  England,  there  were  no  written  consti- 
tutional guaranties. 

We  can  now  judge  of  the  awakening  influence  of  the 
words  of  Jefferson  when  we  note  that  every  nation  in 
Europe  now  has  a  written  constitution,  including  such 
backward  nations  as  Russia  and  Turkey,  and  that  Japan 
and  Persia  have  joined  in  the  general  advance,  while 
China  and  Siam  are  momentarily  expected  to  fall  into 
line,  so  that  we  can  now  foresee  the  complete  decline 
and  fall  of  organic  tyranny  the  world  over. 

Jefferson  and  Clay  did  not  agree  entirely  on  the  con- 
struction of  the  Constitution ;  but  on  the  slavery  question 
they  were  in  perfect  accord.  They  both  believed  that 
slavery  was  a  curse  to  the  south,  in  so  much  as  it  kept 
out  immigration,  discouraged  manufacturers,  hindered 
education  and  discouraged  progress.  At  present  these 
views,  reinforced  by  a  long  and  formidable  array  of 
statistics,  will  hardly  be  denied  by  any  intelligent  person. 

However  high  the  ideals  of  the  people  of  the  south 
may  have  been,  with  their  system  of  labor  those  ideals 
could  never  be  realized.     Mr.  Jefferson  and  Mr.  Clay 


152  Addresses 

agreed  fully  about  one  thing.  They  were  both  opposed 
to  slavery  on  both  economical  and  moral  grounds.  Mr. 
Jefferson  endeavored  to  introduce  a  system  of  gradual 
emancipation  in  Virginia.  He  said :  "I  tremble  for  my 
country  when  I  remember  that  God  is  just."  He  was 
equally  attached  to  the  union  of  the  states.  When  he 
heard  of  the  running  of  an  imaginary  line  between  the 
free  and  the  slave  states,  he  said  that  the  act  filled  him 
with  alarm  like  the  sound  of  a  fire  bell  at  night.  Mr. 
Clay,  a  Virginian  by  birth,  followed  in  the  footsteps 
of  Jefferson.  He  began  his  political  career  in  1799  by 
endeavoring  to  get  the  State  Constitutional  Convention 
to  adopt  the  system  of  gradual  emancipation  favored 
by  Jefferson.  Both  these  great  men  failed  in  their 
efforts ;  but  their  mantle  fell  on  Abraham  Lincoln,  their 
legitimate  successor,  who,  believing  as  they  did,  suc- 
ceeded where  they  failed. 

The  moral  revolt  against  slavery,  having  had  its 
origin  with  the  Quakers,  was  of  slow  growth.  It  culmi- 
nated with  the  beginning  of  our  Civil  War;  but  long 
before  that  time  it  had  been  out  of  keeping  with  the 
spirit  of  the  age. 

On  the  day  after  Mr.  Lincoln's  first  inauguration, 
Alexander  II.,  autocrat  of  all  the  Russias,  emancipated 
by  imperial  decree  all  the  serfs  within  his  dominions, 
and  six  weeks  later  the  Civil  War  which  involved  the 
existence  of  African  slavery  in  this  country  began. 

Mr.  Lincoln  was  unalterably  opposed  to  the  extension 
of  slavery  to  new  territories,  which  seemed  to  him  to  be 
in  principle  identically  the  same  thing  as  the  reopening 
of  the  African  slave  trade ;  and  he  did  not  believe  that 
the  Constitution  guaranteed  such  extension. 

Mr.  Lincoln  loved  the  Union,  and  was  proud  of  its 
traditions  and  of  its  history ;  he  believed  that  its  destruc- 
tion would  extinguish  the  brightest  hopes  of  mankind 
for  the  future  the  whole  world  over,  and  would  be  one 


Abraham  Lincoln  153 

of  the  heaviest  calamities  that  ever  befell  our  race.  He 
was  a  man  that  believed  in  law  and  order,  in  plighted 
faith,  in  the  sacredness  and  inviolability  of  contracts; 
hence  he  was  opposed  to  interference  with  slavery  in 
the  states  where  for  many  long  years  it  had  been  recog- 
nized without  question.  If  the  Union  could  only  be 
preserved  he  felt  sure,  with  Jefferson  and  Clay,  that 
slavery  would,  before  a  great  while,  disappear.  He 
knew  that  a  strong  moral  sentiment,  long  dormant,  was 
growing  up  against  it;  he  believed  that  somehow  or 
other,  if  present  conditions  could  be  maintained,  slavery 
would  vanish  just  as  many  other  evils  had  disappeared. 
He  looked  forward  to  that  time  with  hope.  He  felt 
that  there  never  had  been  a  perfect  union  of  the  states, 
and  never  could  be,  as  long  as  the  slavery  contest 
continued.  He  knew  by  experience  that  one  crossing 
Mason  and  Dixon's  line  in  either  direction,  felt  that 
he  was  entering  another  country.  Still  he  was  not  will- 
ing to  resort  to  any  unconstitutional  measures  in  order 
to  remedy  the  evil.  It  is  not  a  little  singular  that  one 
entertaining  these  moderate  views  should  have  succeeded 
in  accomplishing  that  wherein  many  more  extreme  men 
signally  failed. 

"Washington,  more  than  any  man  of  his  time,  foresaw 
something  of  the  coming  glory  of  America.  To  Lincoln, 
coming  later,  even  a  larger  vision  was  unfolded.  He 
had  seen  the  American  flag  advanced  from  the  Rocky 
Mountains  to  the  western  sea,  and  he  had  heard  the 
wide  reverberation  when  Commodore  Perry  broke  down 
the  iron  gates  of  the  east.  He  had  the  faith  of  an 
anchorite  in  the  unbounded  possibilities  for  good  of  a 
united  and  powerful  nation  inhabiting  a  continent,  most 
of  whose  incalculable  resources  were  as  yet  undeveloped 
and  even  undiscovered.  No  such  beacon  light  had  ever 
before  been  reared  and  kindled  by  human  hands,  and 
if  now  extinguished  great  would  be  the  darkness  that 


154  Addresses 

would  ensue,  loud  the  lamentations  of  generations  yet 
to  come.  The  notion  of  a  dissolution  of  the  United 
States  was  abhorrent  to  him.  He  could  not  bear  to  gaze 
on  a  condition  of  things  when  the  American  citizen 
could  not  cross  the  Potomac  or  the  Tennessee  rivers,  or 
visit  the  tomb  of  Washington  without  a  passport,  or 
without  running  the  gauntlet  of  prying  and  suspicious 
or  insolent  revenue  officers. 

Instead  of  new  iron  bands  to  bind  ever  in  closer 
union  communities  of  kindred  speech  and  race,  he  saw 
long  lines  of  frowning  and  hostile  fortresses,  bristling 
with  cannon,  garrisoned  by  alien  troops,  under  differ- 
ent flags,  the  chartered  abode  of  undying  rancor,  hatred, 
malice  and  all  uncharitableness,  where  lately  only 
imaginary  lines  that  cast  no  shadow  had  been  drawn  by 
friendly  hands.  He  foresaw  that  if  the  work  of  disin- 
tegration was  once  begun,  it  would  proceed  until  the 
country  should  be  parceled  out  amongst  small  and  hos- 
tile nationalities,  each  impeding  the  progress  of  the 
others,  until  they  might  become  an  easy  prey  to  such 
foreign  powers  as  might  for  the  time  dominate  the 
world.  Slavery  was  a  transient  sore,  in  its  nature 
ephemeral,  doomed  to  decay  and  death.  It  only  existed 
in  the  smaller  area  of  our  vast  territory ;  and  if  it  could 
be  confined  within  its  present  limits,  its  ultimate  eradica- 
tion could  not  be  very  remote.  Secession,  he  believed,  if 
successful,  would  hasten  its  end.  If  a  southern  confed- 
eracy should  be  established,  slavery  would  always  be 
insecure  and  unprofitable  in  the  border  States,  where 
it  would  soon  die  out,  leaving  new  border  States  to 
submit  to  the  same  influence,  and  to  undergo  the  same 
destiny.  Nor  would  secession  tend  in  any  degree  to  the 
introduction  of  slavery  into  Kansas  or  Nebraska. 

Mr.  Lincoln  was  elected  to  Congress  in  1848.  During 
the  session  he  introduced  a  bill  providing  for  the  aboli- 
tion of  slavery  in  the  District  of  Columbia  on  condition 


Abraham  Lincoln  155 

that  the  people  of  the  District  should  approve  the 
measure;  providing  also  that  the  United  States  should 
pay  the  owners  the  value  of  their  slaves.  It  should  have 
passed  without  debate.  The  South  had  nothing  to  lose 
by  it.  The  existence  of  slavery  in  the  District  was  for 
many  persons  whose  duties  called  them  to  the  seat  of 
government,  a  painful  and  disagreeable  fact;  and  the 
constant  friction  this  produced  could  benefit  no  one. 

But  the  anti-slavery  leaders  were  as  much  opposed  to 
the  measure  as  were  the  Southern  leaders.  From  an 
economical  point  of  view  the  sum  involved  was  insig- 
nificant. England  in  1833  had  paid  out  20,000,000 
pounds  sterling  to  owners  of  slaves  in  order  to  extinguish 
slavery  in  her  dominions.  The  opposition  to  Mr.  Lin- 
coln's bill  from  the  anti-slavery  camp  resulted  from  an 
excessive  tenderness  of  conscience.  Horace  Greeley  and 
his  colleagues  always  asserted  that  they  would  never 
consent  to  pay  a  single  dollar  for  the  emancipation  of 
slaves,  because  such  an  act  would  serve  to  make  them 
accomplices  in  the  crime  of  slavery  by  reason  of  an 
admission  of  its  validity,  which  they  supposed  would  be 
clearly  implied.  Had  the  proposal  of  Mr.  Lincoln  been 
adopted,  some  peaceful  settlement  of  the  slavery  ques- 
tion might  have  been  possible,  and  a  vast  expenditure 
of  blood  and  treasure  might  have  been  obviated.  Slav- 
ery was  still  not  a  purely  local  question,  since  it  had 
had  its  origin  in  delusions  and  blunders  common  to  all 
the  original  colonies,  in  all  except  one  of  which  slavery 
existed  when  the  Declaration  of  Independence  was 
adopted.  In  proposing  this  measure  Mr.  Lincoln  dis- 
played a  degree  of  foresight,  a  spirit  of  independence, 
a  genuine  patriotism,  and  a  love  of  peace  that  distin- 
guished him  from  many  politicians  of  the  period  whose 
principal  aim  seemed  to  be  to  precipitate  a  civil  war. 
His  bill  was  received  with  such  a  storm  of  abuse  from 
every  quarter  that  it  never  came  to  a  vote. 


156  Addresses 

When  Lincoln  challenged  Douglas  in  1858  for  a  joint 
political  debate,  many  intelligent  persons  regarded  the 
incident  as  the  joke  of  the  season ;  the  impotent  defiance 
of  a  dwarf  to  a  giant.  The  political  plans  of  Mr.  Douglas 
proved  so  disastrous  that  we  are  apt  at  present  to  under- 
rate his  abilities;  which,  nevertheless,  were  of  a  very 
high  order.  By  his  Kansas-Nebraska  bill,  his  repeal  of 
the  Missouri  Compromise  and  the  passage  of  the  stringent 
Fugitive  Slave  Act  of  1854,  he  shattered  his  political 
party,  and  paved  the  way  of  Mr.  Lincoln  to  the  Presi- 
dency. Yet  he  was  a  man  of  great  intellectual  power, 
acknowledged  to  be  the  finest  dialectician  and  debater 
that  the  country  had  produced;  also  an  orator  easily 
taking  rank  along  with  the  highest  and  the  best.  In 
conversation  he  was  so  engaging,  so  entertaining,  so 
brilliant  and  so  attractive,  that  he  always  had  a  large 
following  of  devoted  personal  friends.  Over  young  men 
he  seemed  to  exercise  an  influence  at  once  magical  and 
contagious. 

Mr.  Douglas'  plan  was  at  first  sight  not  without  its 
attractions.  Let  the  first  settlers  in  every  new  territory 
settle  the  slavery  question  for  themselves.  That  was 
good  democratic  doctrine;  and  democracy  is  a  good 
thing ;  but  he  forgot  that  every  good  thing  when  carried 
to  extremes  becomes  a  vice.  His  plan  was  certain  to 
produce  strife  and  violence,  leading  to  civil  war,  as  was 
later  palpably  demonstrated. 

The  speeches  of  Lincoln  and  Douglas  were  reported 
day  by  day  for  weeks  by  the  press  of  the  country,  and 
never  before  had  any  discussion  excited  an  interest  so 
earnest  and  so  intense.  The  speeches  of  Mr.  Lincoln 
came  as  a  revolution,  and  great  was  the  surprise  when  it 
was  discovered  that  the  academic  addresses  of  Sumner, 
Gerritt  Smith  and  Wendell  Phillips,  and  even  the  tre- 
mendous discourses  of  Theodore  Parker,  paled  their 
ineffectual  fires  before  the  eloquence  of  a  country  lawyer 


Abraham  Lincoln  157 

from  the  prairies  of  Illinois,  who  had  never  seen  the 
inside  of  a  college,  and  rarely  the  interior  of  a  backwoods 
country  school.  Owing  to  the  votes  of  the  hold-over  State 
senators,  Douglas  secured  his  election  to  the  United  States 
Senate;  but  as  Lincoln  had  a  majority  of  the  popular 
vote,  the  moral  victory  belonged  to  him;  and  from  that 
time  the  career  of  Mr.  Douglas  was  practically  ended. 
His  nomination  for  the  presidency  was  a  forlorn  hope. 
He  died  on  the  3d  day  of  June,  1861. 

Honesty,  such  as  Mr.  Lincoln  always  displayed,  both 
in  speech  and  act,  thought  by  many  to  be  a  homely 
virtue,  is  yet  one  of  transcendent  importance.  The  poet 
tells  us  that  "An  honest  man's  the  noblest  work  of 
God."  It  is  the  virtue  that  all  vices  war  against.  Many 
men  are  honest  without  being  very  wise;  but  in  so  far 
as  they  are  honest  they  are  wise;  and  if  one  could  be 
perfectly  honest  with  himself,  his  fellow  men  and  his 
Maker,  he  would  possess  all  the  virtues  under  heaven. 

Mr.  Lincoln  was  not  only  honest,  he  was  one  of  the 
kindest  of  men.  His  sympathy  was  always  liberally 
extended  to  the  sorrowful  and  the  afflicted.  His  candor 
and  sincerity  were  equally  remarkable.  No  man  was 
more  conscientious.  You  may  read  all  his  writings  and 
speeches  without  finding  the  least  trace  of  the  arts  of 
the  demagogue.  Perhaps  this  was  one  of  the  secrets  of 
the  success  of  his  oratory.  The  people  learned  to  appre- 
ciate the  delicate  compliment  implied  in  lifting  political 
discussion  above  the  common  low  and  miasmatic  level; 
and  so  they  came  to  know  him,  to  love  him  and  to  trust 
him. 

At  the  time  of  the  Lincoln-Douglas  debates,  Mr.  Lin- 
coln estimated  the  value  of  the  slaves  in  the  South  at 
one  thousand  million  dollars,  precisely  the  amount  of 
the  war  indemnity  exacted  by  Germany  from  France  in 
1871.  And  this  was  undoubtedly  a  very  low  estimate. 
As  the  South  was  in  1858  immensely  inferior  to  France 


158  Addresses 

in  point  of  wealth  in  1871,  the  loss  to  the  South  by- 
emancipation,  however,  brought  about,  would  be  crush- 
ing, bringing  instant  bankruptcy  to  many  thousands  of 
families,  and  producing  such  a  general  financial  ruin 
as  had  hardly  ever  been  witnessed  in  modern  times. 
There  was  then  a  perfect  deadlock.  The  amount  of  the 
loss  to  be  incurred  by  emancipation  was  apparently 
more  than  the  South  could  bear,  and  more  than  the  North 
was  willing  for  the  nation  to  assume.  Mr.  Lincoln 
appreciated  the  real  difficulty  of  the  situation,  and  with 
that  magnanimity  which  distinguished  him  above  all  the 
statesmen  of  his  time,  he  refrained  from  violent  censure 
of  the  South.  In  his  great  speech  in  answer  to  Douglas 
on  the  4th  of  October,  1854,  at  Peoria,  in  speaking  of  the 
Southern  people,  he  said: 

"They  are  just  what  we  would  be  in  their  situation. 
If  slavery  did  not  exist  among  them,  they  would  not 
introduce  it.  If  it  did  now  exist  among  us,  we  should  not 
instantly  give  it  up.  *  *  *  I  surely  will  not 
blame  them  for  what  I  should  not  know  how  to  do  myself. 
If  all  earthly  power  were  given  me,  I  should  not  know 
what  to  do  with  the  existing  institution." 

Mr.  Lincoln  was  outraged  by  the  repeal  of  the  Mis- 
souri Compromise.  He  had  a  right  to  be  so.  It  was  an 
act  of  bad  faith ;  moreover  it  was  an  act  of  extreme  folly 
and  madness.  If  slavery  could  have  been  legislated  into 
Kansas  and  Nebraska,  the  inclemency  of  the  climate  in 
those  territories  would  have  rendered  its  continuance 
impossible.  Considering  the  opposition  to  be  encount- 
ered, nothing  could  be  more  Quixotic.  But,  deeply 
incensed  as  he  was,  Mr.  Lincoln  was  before  and  above 
all  things  tolerant  and  just.  And  such  was  the  spirit 
that  he  manifested  to  the  last.  In  his  second  inaugura- 
tion address  in  1865,  he  said:  "But  let  us  judge  not, 
that  we  be  not  judged,"  and  declared  that  he  was  pur- 
suing his  official  course  "with  malice  toward  none  and 


Abraham  Lincoln  159 

with  charity  for  all. ' '  His  public  utterances  were  always 
free  from  vituperation  and  invective,  and  never  did  he 
speak  harshly  of  the  brave  men  that  fought  under  the 
banner  of  Lee  and  Johnston  and  Stonewall  Jackson. 

At  the  time  of  the  Hampton  Roads  conference  it  must 
have  been  clear  to  Mr.  Lincoln  that  the  result  of  the 
war  was  a  foregone  conclusion.  Foreign  intervention 
had  failed.  The  North  possessed  vastly  superior 
resources  of  all  kinds,  and  had  the  whole  world  as  a 
recruiting  station,  including  the  South  itself ;  for  during 
the  war  179,000  colored  troops  were  enlisted  in  the 
Union  army,  nearly  as  many  soldiers  as  Napoleon  mar- 
shalled at  Waterloo.  In  the  meantime  Mr.  Lincoln 
continued  to  manifest  that  vigilance,  patient  persever- 
ance and  remarkable  ability  at  home  and  abroad  that 
rendered  Southern  success  impossible;  but  even  then  he 
was  willing  to  make  almost  any  concession  consistent 
with  the  perpetuity  of  the  Union. 

Mr.  Lincoln,  the  restorer  of  the  Union,  has  often  been 
likened  to  Washington,  its  founder;  and  they  undoubt- 
edly had  many  traits  in  common;  the  same  earnestness 
and  fixedness  of  purpose,  the  same  courage  and  fortitude 
under  the  most  harrassing  and  desperate  surroundings, 
the  same  patience  in  the  midst  of  adversity,  the  same 
toleration,  the  same  indefatigable  perseverance,  the  same 
power  of  resistance  to  public  clamor,  the  same  devotion 
to  a  sense  of  duty.  It  may  well  be  that  this  resemblance 
was  partly  due  to  the  continual  contemplation  by  Mr. 
Lincoln  of  the  exalted  character  of  one  whom  he  always 
regarded  as  the  loftiest  model  of  an  unselfish  patriot 
and  a  wise  and  farseeing  statesman.  Both  sprang  from 
the  people,  and  their  characters  in  some  respects  were 
not  unlike. 

Of  all  the  men  who  knew  Mr.  Lincoln  intimately  I  do 
not  know  of  any  one  who  has  left  so  striking  a  picture 
of  him  as  he  appeared  in  social  life  as  that  left  by 


160  Addresses 

Alexander  H.  Stephens,  who  boarded  and  roomed  in 
the  same  house  with  him  during  the  years  when  they 
were  in  Congress  together,  and  who,  after  Lincoln 's  death 
wrote  as  follows: 

"Mr.  Lincoln  was  careful  as  to  his  manners,  awkward 
in  his  speech ;  but  was  possessed  of  a  very  clear,  strong 
and  vigorous  mind.  He  always  attracted  the  riveted 
attention  of  the  House  when  he  spoke;  his  manner  of 
speech  as  well  as  thought,  was  original.  He  had  no 
model.  He  was  a  man  of  strong  convictions,  and  was 
what  Carlyle  would  have  called  an  earnest  man.  He 
abounded  in  anecdotes;  he  illustrated  everything  that 
he  was  talking  or  speaking  about  by  an  anecdote;  his 
anecdotes  were  always  exceedingly  apt  and  pointed ;  and 
socially  he  always  kept  his  company  in  a  roar  of 
laughter." 

It  has  been  remarked  that  persons  gifted  with  a  keen 
sense  of  humor  are  often  found  to  be  peculiarly  subject 
to  periods  of  depression  and  melancholy.  The  same  dis- 
criminating insight  that  enables  them  to  perceive 
ludicrous  disparities,  also  brings  into  clear  light  the 
harrowing  vicissitudes,  incongruities  and  disappoint- 
ments that  go  so  far  to  make  up  the  sum  of  human 
sorrows.  All  who  knew  Mr.  Lincoln  with  anything  like 
intimacy  say  that  his  countenance,  when  in  a  state  of 
repose,  always  wore  an  expression  of  sadness;  and  it 
seems  quite  certain  that  few  persons  have  felt 

"*     *     *    the  heavy  and  weary  weight 
Of  all  this  unintelligible  world" 

more  than  he  did  in  his  hours  of  reflection  and 
meditation. 

Mr.  Lincoln  was  a  man  of  peace,  a  man  of  kindly  and 
humane  feelings  to  whom  war  was  utterly  abhorrent ;  he 
believed  with  Mr.  Sumner  and  the  ancient  Romans,  that 


Abraham  Lincoln  161 

no  garlands  could  grow  on  the  fields  of  battle  of  a  civil 
war;  he  was  averse  to  weighing  money  against  human 
life,  and  when  the  war  was  costing  the  North  four  million 
dollars  a  day,  he  proposed  to  pay  the  slaveholders  four 
hundred  million  dollars  for  the  sake  of  peace  upon  the 
sole  condition  that  the  Union  should  be  restored  and 
perpetuated.  Such  a  consummation  at  that  time  was 
not  possible;  but  the  offer  shows  how  afflicting  and 
painful  the  fratricidal  war  was  to  him. 

When  we  look  over  the  acrimonious  debates  in  Con- 
gress for  several  years  preceding  the  Civil  War,  the 
participants  seem  to  be  men  fighting  in  the  dark,  dis- 
puting about  slavery  in  the  Territories  when  the  very 
foundation  of  slavery  itself  was  already  undermined  all 
over  the  world  by  an  irresistible  tide  of  moral  sentiment. 

If  any  one  had  said  to  the  angry  disputants  in  Con- 
gress in  1860  that  in  a  few  years  slavery  would  be 
abolished  at  an  expense  to  the  North  and  the  South  each 
many  times  greater  than  the  value  of  the  slaves,  and 
that  the  South  would  be  glad  of  it,  he  would  have  been 
considered  as  demented;  and  yet  that  is  just  what 
happened.  The  dream  of  Jefferson  has  been  verified. 
Slavery  has  been  abolished.  The  dream  of  Lincoln  has 
come  true.  The  Union  has  been  preserved.  True,  if  we 
had  only  known  we  could  have  got  these  things  at  far 
less  than  half  price,  without  the  loss  of  a  single  life, 
without  arresting  the  march  of  prosperity  and  civiliza- 
tion for  so  long  a  time ;  but  great  blessings  come  fright- 
fully dear;  and  we  cannot  haggle  with  the  decrees  of 
fate. 

Astonishing  as  it  may  seem,  the  South  could  not  only 
have  freed  the  slaves  without  compensation,  and  could 
even  have  paid  millions  for  the  privilege  of  doing  so; 
and  could  still  have  come  out  ahead;  to  say  nothing 
about  the  devastation,  destruction  and  loss  of  life  occa- 
sioned by  the  war.     Considered  in  a  pecuniary  light 


162  Addresses 

solely,  the  South  lost  the  slaves  and  paid  for  them 
besides,  while  the  North  expended  far  more  than  the 
value  of  the  slaves  without  any  compensation  to  any  one. 
And  yet  unconsciously  and  blindly  they  were  both 
attacking  the  same  problems  from  different  points,  and 
were  striving  with  equal  ardor,  though  with  diverse 
motives,  to  destroy  slavery,  and  to  perpetuate  the  Union 
of  the  States.  If  they  had  both  been  working  in  perfect 
and  conscious  harmony  they  could  not  have  accomplished 
these  grand  results  half  so  well ;  could  only  have  passed 
some  Missouri  Compromise  one  day  to  have  had  it 
repealed  the  next. 

The  rehabilitation  of  the  South  has  been  one  of  the 
most  surprising  of  human  events.  Usually  nothing  is 
slower  than  the  recovery  of  a  country  from  the  desolation 
and  ruin  of  a  war  of  occupation.  Palestine,  harried  and 
depopulated  by  the  Koman  legions  eighteen  hundred 
years  ago,  has  never  been  re-peopled.  Italy,  invaded  by 
hordes  of  barbarians  centuries  ago  has  never  recovered 
from  the  ravage  of  the  spoilers. 

The  war  in  the  South  did  not  end  until  1877.  No 
one  can  compute  the  loss  that  her  people  sustained  by 
the  war.  "We  may  count  up  the  loss  by  reason  of  the 
emancipation  of  the  slaves  and  by  the  cotton  tax;  but 
the  immense  value  of  human  lives  destroyed  admits  of 
no  computation.  Pericles  said  that  when  the  young  men 
of  a  country  are  slain  in  battle  it  is  as  if  the  year  had 
died  in  its  spring.  Such  was  the  greatest  loss  sustained 
by  the  South,  even  judged  merely  from  an  economical 
standpoint.  Moreover  the  South  has  paid  her  part  of 
the  national  debt  and  of  the  pensions  of  the  Union 
soldiers  growing  out  of  the  Civil  War. 

Nothing  could  prove  more  conclusively  than  this  sud- 
den recovery  from  such  enormous  and  multiplied  losses 
the  value  and  the  inspiration  of  an  undivided  country, 
and  that  slavery  was  always  an  impediment  and  a  blight 


Abraham  Lincoln  163 

to  the  South  so  long  as  it  endured.  We  speak  of  the 
emancipation  of  the  negroes;  but  we  had  just  as  well 
speak  of  the  emancipation  of  the  whites  of  the  South; 
for  slavery  was  as  hard  on  the  whites  in  the  long  run  as 
on  the  blacks.  Mr.  Lincoln  always  asserted  that  slavery 
was  a  fatal  impediment  on  Southern  progress;  and 
to-day  there  is  not  a  man  in  the  South  that  does  not 
regard  its  destruction  as  the  most  unqualified  of 
blessings. 

Slavery  which  hindered  the  progress  of  the  South 
during  peace  was  fatal  in  war.  Without  it  England  and 
France  would  have  recognized  the  Confederacy  in  Sep- 
tember, 1862.  Nothing  but  the  able  leadership  of  the 
Southern  generals  and  the  valor  of  the  Southern  troops 
could  have  prolonged  the  war  as  it  was  prolonged.  In 
the  meantime  the  vigilance,  perseverance  and  ability  of 
Lincoln  in  the  management  of  affairs  both  at  home  and 
abroad  rendered  Southern  success  ultimately  impossible. 

Our  Civil  War  excelled  for  magnitude  all  wars  ever 
known.  Though  it  was  a  dark  and  troubled  time;  a 
time  of  universal  mourning  and  affliction;  I  am  not 
sure  that  it  could  have  been  avoided  by  the  utmost 
exercise  of  human  wisdom.  It  was  amidst  tremendous 
convulsions  that  the  mountains  were  upheaved  and  the 
seas  were  assigned  to  their  bounds  before  the  earth  was 
prepared  for  the  abode  of  man ;  and  even  now  the  proud- 
est city  reared  by  human  hands  may  be  turned  to  dust 
and  ashes  before  the  footsteps  of  the  earthquake  or  the 
breath  of  the  tempest. 

I  am  not  sure  that  any  great  nation  has  ever  been 
born  unless  in  throes  of  agony.  Look  at  the  civil  wars 
of  England  from  the  heptarchy  and  the  Wars  of  the 
Roses  down  to  the  Great  Rebellion;  look  at  the  wars  of 
the  Pretenders  between  England  and  Scotland  that 
obliterated  the  names  of  the  Stuarts,  and  made  of  the 
two  countries  one.     Trace  back  the  history  of  France, 


164  Addresses 

Germany,  Austria,  Russia,  Italy,  Greece,  Spain  and  all 
the  other  great  nations  that  ever  existed;  and  in  every 
instance  the  same  sad  story  is  rehearsed,  and  we  see  our 
own  history  mirrored  in  that  of  the  nations  that  went 
before,  while  paper  constitutions  and  parchment  treaties 
could  not  long  hold  together  Belgium  and  Holland, 
Denmark  and  Norway  or  Norway  and  Sweden.  If  we  are 
to  regard  the  teachings  of  history  it  would  seem  that 
permanent  and  perfect  national  unity  can  only  be  welded 
in  the  lurid  flames  of  civic  discord. 

But  the  times  of  fermentation  and  destructive  energy 
are  succeeded  by  long  period  of  quiet.  The  earthquake 
is  stilled,  the  tempest  is  becalmed,  and  Nature,  renewing 
what  she  had  destroyed,  spreads  a  carpet  over  scenes  of 
ruin  and  desolation;  and  there  the  flowers  will  bloom, 
and  the  trees  will  grow,  and  the  birds  will  sing  their 
still  unforgotten  songs.  It  is  gratifying  to  us  to  know 
that  the  war  cloud  so  long  hovering  over  our  country  has 
been  dispersed  and  that 

"No  more  shall  the  war  cry  sever 
Or  the  winding  rivers  he  red." 

Perhaps  there  will  never  be  a  time  to  come  when  the 
sufferings  and  bereavements  of  the  civil  war  will  not 
awaken 

"*     *     *    the  Virgilian  cry, 
The  sense  of  tears  in  mortal  things." 

But  let  us  be  comforted.  The  one  great  and  para- 
mount question  concerning  our  national  perpetuity  that 
Statesmen  could  not  solve,  that  darkened  the  mind  of  the 
patriot,  that  saddened  the  poet's  song,  and  that  was 
wont  to  silence  the  voice  of  mirth,  shall  vex  the  world  no 
more.  Problems  we  may  have  to  solve,  difficulties  to 
encounter,  but  we  can  henceforth  meet  them  courage- 


Abraham  Lincoln  165 

oualy,  conscious  of  mutual  aid,  and  of  mutual  sympathy 
sustained  and  supported  by  the  same  lofty  hopes  and  by 
the  undying  inspiration  of  a  common  destiny. 

The  sensations  first  produced  by  the  cruel,  dastardly 
and  cowardly  assassination  of  Mr.  Lincoln  occur  when- 
ever the  event  is  recalled.  Nothing  could  present  in  a 
more  revolting  form  the  problem  of  the  existence  of  evil 
in  the  world.  Looking  back  over  the  succeeding  years 
we  cannot  fail  to  recognize  the  fact  that  by  that  crime 
the  greatest  loss  ever  sustained  was  incurred  in  this  coun- 
try by  the  death  of  a  single  individual.  Mr.  Lincoln  was 
the  only  man  in  all  history  who,  being  by  his  very  con- 
stitution and  immutable  temperament  a  friend  of  peace, 
ever  conducted  a  great  and  difficult  war  to  a  successful 
issue.  With  this  fact  in  view  it  would  seem  to  go  without 
saying  that  his  services  in  restoring  peace  to  the  dis- 
tracted country,  had  he  lived,  would  have  been  no  less 
efficient. 

Before  the  assassination  of  Mr.  Lincoln  the  war  had 
ended.  In  the  South  the  enormity  of  the  crime  aggra- 
vated the  sense  of  the  general  calamity,  and  excited 
serious  apprehensions  that  were  soon  to  be  realized.  Dur- 
ing the  long  war  Mr.  Lincoln  had  been  grossly  misrepre- 
sented; but  by  the  time  that  it  closed  the  Southern 
people  had  learned  to  know  him  better ;  and  had  learned 
to  rely  on  his  charitable  judgment ;  and  it  was  not  diffi- 
cult for  them  to  realize  that  his  taking  off  was  one  of 
the  greatest  calamities  that  could  have  occurred.  Per- 
haps no  one  was  more  deeply  mourned  than  was  Mr. 
Lincoln  by  the  army  and  all  over  the  North.  An  Amer- 
ican poet  expressed  the  general  sentiment  concerning  the 
nation's  loss  in  a  few  lines  in  which  his  genius  reached 
its  high  water  wark : 

"0  Captain!  my  Captain!  our  fearful  trip  is  done; 
The  ship  has  weathered  every  tack,  the  prize  we  sought  is  won, 


166  Addresses 

The  port  is  near,  the  bells  I  hear,  the  people  all  exulting, 
While  follow  eyes  the  steady  keel,  the  vessel  grim  and  daring: 
But  O  heart!  heart!  heart! 

O  the  bleeding  drops  of  red! 

Where  on  the  deck  my  Captain  lies, 
Fallen  cold  and  dead." 
"O  Captain!  my  Captain!  rise  up  and  hear  the  bells; 
Rise  up— for  you  the  flag  is  flung — for  you  the  bugle  thrills; 
For  you  bouquets   and  ribboned  wreaths — for  you  the   shores 

a-crowding ; 
For  you  they  call,  the  swaying  mass,  their  eager  faces  turning. 
Here   Captain!    dear  Father! 
This  arm  beneath  your  head! 
It  is  some  dream  that  on  the  deck 
You've  fallen  cold  and  dead. 
"My  Captain  does  not  answer,  his  lips  are  pale  and  still; 
My  father  does  not  feel  my  arm,  he  has  no  pulse  nor  will; 
The  ship  is  anchored  safe  and  sound,  its  voyage  closed  and  done; 
From  fearful  trip  the  victor  ship  comes  in  with  object  won: 
Exult,  O  shores!  and  ring,  O  bells! 
But  I  with  mournful  tread, 

Walk  the  deck  my  Captain  lies, 
Fallen  cold  and  dead." 

Louis  XVI  of  France,  who  aided  our  countrymen  of 
other  times  to  throw  off  the  yoke  of  George  III,  perished 
on  the  scaffold;  Alexander  II,  autocrat  of  all  the 
Russias,  who  liberated  all  the  serfs  in  his  wide  domin- 
ions, and  Abraham  Lincoln,  who  freed  four  million  of 
African  slaves  on  this  continent,  perished  at  the  hands 
of  ruthless  assassins.    So  true  is  it  that 

"He  who  surpasses  or  subdues  mankind 
Must  look  down  on  the  fate  of  those  below." 

So  true  is  it  that  he  who  undertakes  any  great  moral, 
social  or  political  reform,  may  well  expect  to  incur 
corresponding  perils.  "Paradise,"  said  Mahomet,  "lies 
under  the  shadows  of  swords. ' ' 

Sad  as  these  things  may  seem  to  us,  it  must  be  plain 


Abraham  Lincoln  167 

that  if  the  exercise  of  the  highest  virtues  were  always 
attended  in  this  world  by  adequate  rewards,  unselfish 
and  self-sacrificing  devotion  would  have  no  place  in 
human  experience,  the  loftiest  heights  of  moral  achieve- 
ment would  be  forever  inaccessible;  and  we  should  seek 
in  vain  for  a  hero  amid  a  race  of  hirelings. 


JEFFERSON  DAVIS 

Memorial  Address  on  the  Life,  Character  and  Public  Services 

of  Jefferson  Davis,  Delivered  at  the  Hall  of  the  House 

of  Representatives,  Little  Rock,  Wednesday 

Evening,  December  13,  1889 


JEFFERSON  DAVIS 

At  the  public  meeting  of  citizens  on  the  13th  inst.,  on 
the  occasion  of  the  death  of  the  Hon.  Jefferson  Davis, 
Judge  Rose,  on  the  invitation  of  the  Committee  of 
Arrangements,  delivered  the  memorial  address.    He  said : 

It  was  the  admonition  of  an  ancient  philosopher  that 
we  should  count  no  man  happy  until  he  dies;  and  by  a 
modern  one  we  are  told  that  "Death  hath  this  also,  that 
it  openeth  the  gate  to  good  fame,  and  extinguisheth 
envy. ' '  I  would  that  it  might  be  so ;  and  that  we  might 
speak  of  the  dead  equally  without  envy  or  malice,  but 
still  not  without  that  finer  sense  of  charity,  the  attain- 
ment of  which  is  the  most  difficult  and  the  highest 
achievement  of  humanity.  When  a  man  who  has  occu- 
pied a  prominent  place  in  the  age  in  which  he  has  lived, 
a  man  who  has  made  his  mark  upon  his  era  by  bold, 
decisive  and  aggressive  action,  ceases  to  live,  there  is  at 
first  a  confused  murmur  of  many  voices,  in  which  the 
discordant  notes  of  indiscreet  praise  and  unwise  censure 
most  loudly  fall  upon  the  ear.  But  in  the  solemn  hour 
of  death,  when  human  passion  stands  confronted  with  a 
mightier  presence,  before  which  every  one  sooner  or  later 
must  bow  in  humble  and  silent  submission,  it  is  not  to 
these  that  the  votary  of  truth  would  yield  his  confidence ; 
rather  would  he  listen  to  a  more  circumspect  and  dis- 
passionate finding  as  to  questions  upon  which  the  world 
may  never  be  wholly  agreed.  And  yet  how  shall  the 
fit  words  be  spoken  that  are  "like  apples  of  gold  in 
pictures  of  silver;"  and  how  is  it  possible  for  us  to 
regard  the  life  of  a  man  so  full  of  striking  events,  so 
much  made  up  of  action  having  the  most  extensive  effects 
on  important  political  questions  that  have  excited  the 

171 


172  Addresses 

enthusiasm  or  animosity  of  mankind,  at  a  time  when 
very  many  of  his  contemporaries,  friends  and  enemies, 
are  still  living  and  he,  himself  so  long  the  center  of 
absorbing  interest,  has  been  but  for  a  few  hours  locked  in 
that  sleep  which  closes  for  good  or  ill  all  the  records 
of  his  life  ? 

The  eyes  that  will  read  the  dispassionate  history  of 
Jefferson  Davis  are  as  yet  unborn.  As  for  us,  we  live 
too  near  the  thrilling  events,  the  tremendous  concus- 
sions, the  strife,  the  passion,  the  crash  and  the  conflict 
of  the  period  in  which  he  played  a  principal  part.  Time 
was  when  the  ancient  Egyptians  had  a  constituted 
tribunal,  whose  solemn  function  it  was  to  pass  on  the 
merits  of  the  dead  before  they  were  committed  to  sepul- 
ture. At  a  period  when  there  were  fewer  written  mem- 
orials, when  oblivion  more  quickly  trampled  under  foot 
the  memories  of  men,  when  all  the  elements  of  life  were 
simpler,  this  speedy  method  of  adjudication  may  have 
been  deemed  appropriate;  but  we  cannot  but  suspect 
that  beneath  the  stern  aspect  of  the  judges  who  were  to 
pass  on  those  who  were  insensible  to  rewards  and  beyond 
the  reach  of  punishment,  there  was  latent  that  aggrega- 
tion of  human  infirmities  that  more  or  less  affected  the 
decision,  which  was  still  liable  to  be  reversed  at  some 
later  time  by  a  more  enlightened  public  opinion.  Not 
Talleyrand,  not  Bertrand,  or  Bourrienne,  knew  half  as 
much  about  Napoleon,  though  they  sat  at  the  same  table, 
and  were  deep  in  his  counsels,  as  we  who  never  saw  him 
know  to-day ;  and  so  of  Jefferson  Davis,  many  memorials 
as  yet  unwritten,  and  existing  only  in  the  minds  of  his 
contemporaries,  many  documents  as  yet  unpublished, 
must  be  collated,  before  a  fairly  just  estimate  can  be 
taken  of  his  extraordinary  character.  The  labor  and 
the  duty  of  making  up  that  discriminating  apprecia- 
tion which  is  called  the  verdict  of  history,  must  rest 
for  a  later  generation,  made  up  of  men  and  women  who 


Jefferson  Davis  173 

will  be  strangers  to  that  vast  political  convulsion  that 
has  darkened  the  process  of  many  of  our  years,  for  a 
generation  that  will  be  far  removed  from  that  scene  of 
strife  and  collision  which  have  left  their  deep  impress 
on  everything  that  we  see  around  us  to-day.  Few  are 
the  names  that  are  called  before  that  august  and  solemn 
tribunal  which  gives  the  final  verdict  on  the  unreturn- 
ing  past;  for  it  deals  not  with  the  deeds  or  memory  of 
common  men;  and  its  impressive  adjudications  are  so 
supreme  and  decisive  that,  overriding  all  temporary 
passion  and  prejudice,  displacing  all  the  illusive  devices 
of  deceitful  men,  it  has  stripped  the  ermine  from  the 
backs  of  unjust  and  wicked  judges,  has  removed  the 
mask  of  hypocrisy  from  the  face  of  the  pretended  saint, 
it  has  deprived  kings  and  emperors  of  robe  and  scepter, 
has  explored  all  the  recesses  of  baseness  and  cupidity 
in  high  places,  and  has  distributed  the  world's  honors 
anew,  lifting  into  fame  the  worthy  and  obscure,  and 
fixing  its  indelible  mark  of  condemnation  on  the 
unworthy  and  the  vile  of  whatever  rank  or  station. 

Before  that  tribunal,  in  its  high  session,  shall  be 
called  in  due  time  the  name  of  him  that  died  but  yes- 
terday ;  and  few  names  more  imposing ;  for,  however  its 
verdict  may  be,  none  will  deny  that  the  investigation 
is  fraught  with  that  interest  that  is  everywhere  attracted 
by  a  great  and  unusual  career.  We  may  also  foretell 
that  if  posthumous  criticism  shall  number  and  define 
many  mistakes  that  he  may  have  made  in  the  most 
embarrassing,  difficult  and  dangerous  emergencies — 
those  terrible  straits  that  most  try  the  strength,  the 
hearts  and  the  souls  of  men — that  that  later  and  more 
mature  expression  of  justice,  long  deferred,  will  give 
him  credit  for  having  acted  from  motives  as  high,  and 
as  pure,  and  as  free  from  all  taint  of  sordid  ambition 
as  any  patriot  that  ever  wore  the  crown  of  victory 
acquired  on  a  more  successful  field  of  battle;  and  that 


174  Addresses 

in  personal  and  moral  courage  to  sustain  his  convic- 
tions, he  has  had  no  superior  among  the  children  of  men. 

The  exact  measure  of  praise  or  censure  that  should 
be  meted  out  to  Mr.  Davis  it  is  not  for  us  to  assert ;  but 
as  the  world  believes  in  the  principle  of  representation 
in  punishments  as  well  as  in  honors,  we  know  that  he 
has  been  made  the  scape-goat  for  many  sins  that  should 
be  laid  at  the  doors  of  others;  and  that  as  for  us  in 
the  South  who  participated  in  the  measures  of  the  war, 
early  or  late,  there  is  no  reprobation  that  can  be  visited 
on  him  that  will  not  also  fall  upon  ourselves. 

I  know  that  the  war,  like  all  other  great  social  wars, 
had  long  roots  in  the  past,  reaching  back  to  the  time 
when  the  good  Spanish  priest  Las  Casas  advised  that 
negro  slaves  might  be  imported  into  America,  so  as  to 
relieve  the  native  Indians  from  enforced  labor;  to  the 
time  when  the  good  Puritan  brethren  of  New  England, 
with  many  a  prayer,  and  never  a  misgiving,  fitted  out 
their  ships  for  the  African  coast,  expecting  profitable 
returns  of  ivory  and  slaves. 

I  am  far  from  thinking  that  slavery  was  the  direct 
cause  of  the  war;  for  Mr.  Lincoln  and  those  who  acted 
with  him  announced  at  the  beginning  of  the  conflict  that 
they  had  no  purpose  to  overturn  that  institution;  but 
slavery  had  made  a  very  visible  line  of  distinction 
between  the  Northern  and  Southern  parts  of  our  coun- 
try. Its  extension  was  deprecated,  its  existence  deplored, 
and  there  was  a  growing  moral  and  religious  sentiment 
that  was  hostile  to  its  continuance. 

When  Mr.  Davis  was  born  into  the  world,  which  he 
was  destined  to  find  so  full  of  trouble,  less  than  ten  years 
had  elapsed  since  Washington,  the  great  first  President, 
had  been  consigned  to  rest  at  Mt.  Vernon  amidst  the 
mourning  of  the  people;  and  yet  even  then  differences 
were  beginning  to  be  felt,  that  grew  out  of  the  unhar- 
monious  development  of  the  North  and  the  South.    That 


Jefferson  Davis  175 

sectional  feeling  which  has  been  the  bane  of  our  National 
existence,  and  which  may  yet  prove  to  be  our  ruin,  was 
a  part  of  his  sad  inheritance  as  it  has  been  of  ours.  It 
seemed  at  that  time  to  be  but  a  little  flame  that  might 
be  easily  extinguished;  but  it  is  with  nations  as  it  is 
with  men,  their  wisdom  generally  comes  too  late  for 
practical  and  successful  application. 

Later  on,  Calhoun  did  indeed  foresee  the  threatened 
catastrophe,  which  he  thought  to  guard  against  by  arti- 
ficial balances  of  power  that  should  have  the  effect  to  tie 
up  forever  the  hands  of  both  contending  parties.  Equally 
clear  was  the  mental  vision  of  Henry  Clay;  and  he 
sought  to  provide  a  remedy  of  compromise  and  concilia- 
tion. Afterwards,  when  his  life  was  drawing  to  an  hon- 
ored close,  he  saw  that  temporary  expedients  could  not 
be  relied  on  for  permanent  relief;  and  for  the  removal 
of  the  principal  cause  of  dissension,  he  recommended  a 
system  of  gradual  emancipation.  Unfortunately  his 
plan  was  not  adopted ;  and  the  state  of  the  country  grew 
year  by  year  more  gloomy  and  threatening. 

One  deeply-seated  ground  for  apprehension  was  found 
in  the  fact  that  no  definite  remedy  had  been  provided 
by  the  founders  of  the  Republic  if  any  State,  or  any 
number  of  States,  should  attempt,  in  their  sovereign 
capacity,  to  withdraw  from  the  Federal  Union — a  cir- 
cumstance which  the  founders  of  our  Government  hoped 
might  never  occur.  No  resort  to  arms  was  ever  con- 
templated by  them;  for  civil  war  is  not  a  part  of  the 
scheme  of  any  organic  government,  and  no  peaceable 
remedy  was  suggested  for  an  emergency  that  patriotism 
deemed  improbable. 

It  is  not  to  be  imagined  that  any  ideal  harmony  ever 
existed  among  the  States.  A  condition  of  peace  may  be 
foreshadowed  in  another  world;  but  it  has  no  place  in 
this.  There  were  bickerings,  old  and  new,  and  some  of 
them  had  their  origin  far  back  in  the  Colonial  days;  so 


176  Addresses 

that  when  Washington  presided  over  the  convention  that 
formed  the  Constitution  of  the  United  States,  he  listened 
to  the  diverse  and  discordant  utterances  of  which  our 
civil  war  was  a  late  and  violent  echo ;  and  when  the  Con- 
stitution was  presented  to  the  people  and  to  the  States 
for  adoption,  it  was  done  in  an  ambiguous  way  that  was 
intended  to  obviate  objections,  and  which  actually  had 
that  effect,  though  it  was  thereby  made  afterwards  well- 
nigh  impossible  to  say  whether  the  ratification  of  that 
instrument  was  due  to  the  action  of  the  people  directly, 
or  to  the  corporate  assent  of  the  States.  Moreover,  the 
instrument  itself,  dealing  as  it  did,  with  great  subjects 
briefly  expressed,  and  being  a  result  of  a  series  of  com- 
promises between  men  of  opposing  views,  was  susceptible 
of  a  great  variety  of  interpretations;  so  that  every  man 
reading  it  in  the  light  of  his  preconceived  opinions,  saw 
in  it  a  reflection  of  his  own  individual  views,  and  Alex- 
ander Hamilton  took  it  to  be  a  warrant  for  a  strongly 
centralized  Government,  while  Thomas  Jefferson  empha- 
sized in  his  own  mind  the  guarantees  of  individual  rights 
which  it  contains.  In  the  light  of  history,  it  is  perfectly 
just  to  say  that  the  framers  of  that  Constitution  had  not 
been  educated  to  believe  in  the  continuance  of  any  form 
of  government  by  mere  physical  force.  They  had 
revolted  from  the  British  Crown,  and  had  achieved  their 
independence  by  force  of  arms;  and  they  had  entered 
into  the  articles  of  confederation,  which  had  established 
a  government  based  on  patriotic  sentiment  and  moral 
suasion  alone.  Though  it  was  intended  that  the  Govern- 
ment of  the  United  States  should  be  much  more  efficient 
than  that  which  it  superseded,  yet  there  was  no  hint 
that  the  Constitution  conferred  any  power  of  coercion 
over  any  State  that  should  grow  weary  of  the  Federal 
yoke;  and  it  is  hardly  to  be  doubted  that  if  a  clause 
importing  a  right  to  coerce  an  unwilling  State  had  been 
proposed,  it  would  have  been  almost  or  quite  unani- 


Jefferson  Davis  177 

mously  rejected,  as  being  at  variance  with  the  Declara- 
tion of  Independence,  that  Governments  "derive  their 
just  powers  from  the  consent  of  the  governed,"  and 
"that  whenever  any  form  of  Government  becomes 
destructive  of  these  ends,  it  is  the  right  of  the  people  to 
alter  or  abolish  it,  and  to  institute  a  new  Government, 
laying  its  foundations  on  such  principles  and  organizing 
its  power  in  such  form  as  to  them  shall  seem  most  likely 
to  effect  their  safety  and  happiness." 

It  would  appear  that  most  if  not  all  of  the  founders 
of  the  Government  regarded  it  as  being  in  the  nature  of 
an  experiment;  though  they  had  great  hopes  of  its  suc- 
cessful operation,  and  were  perhaps  sanguine  on  the 
subject  of  its  perpetuity.  We  find  accordingly  that 
neither  Webster,  the  great  expounder,  or  any  other  great 
leader  who  succeeded  them  at  any  time  declared  it  as  a 
principle  that  the  State  Governments  were  subject  to 
coercion  if  they  should  endeavor  to  withdraw  peace- 
ably from  the  Federal  bond  of  Union.  Much  as  they  may 
have  deprecated  and  condemned  any  such  step  as  being 
unwise  and  criminal,  fraught  with  danger  and  disaster, 
they  never  asserted  that  the  Constitution  contained  any 
clause  justifying  a  resort  to  force  as  against  any  seced- 
ing State  or  States  of  the  Union.  Nor  did  Andrew 
Jackson,  in  his  Charleston  letter,  or  when  he  declared 
his  readiness  to  hang  Calhoun  and  his  followers  higher 
than  Haman,  have  reference  to  the  secession  of  a  State, 
but  to  the  announced  policy  of  certain  citizens  of  South 
Carolina  of  staying  in  the  Union,  and  still  nullifying 
and  disobeying  the  Federal  laws;  though  certainly  no 
one  ever  had  a  stronger  attachment  for  the  Union,  or  a 
stronger  conviction  of  the  moral  wrong  of  secession,  and 
the  evils  that  would  flow  from  an  attempted  withdrawal 
of  any  State  from  the  Union  than  he.  The  argument  for 
coercion  on  Constitutional  grounds,  rarely  heard,  was 
always  attended  with  the  difficulty  that  the  Government 


178  Addresses 

of  the  United  States  was  confessedly  one  of  conceded 
powers  alone,  and  that  nothing  looking  to  the  coercion 
of  a  State  was  to  be  found  in  that  instrument. 

This  state  of  affairs  was  extremely  unfortunate,  for 
it  gave  rise  to  doubts  of  the  stability  of  our  Govern- 
ment, and  the  security  of  all  the  institutions  that  depend 
upon  it;  but  for  a  long  time  there  was  hardly  any  con- 
tention on  this  subject  that  assumed  anything  like  a 
sectional  character  corresponding  with  the  sectional  line 
of  slavery;  for  the  first  threat  of  secession  came  from 
New  England  during  the  war  of  1812,  and  not  from  any 
part  of  the  South. 

I  make  these  remarks  because  some  understanding  of 
these  matters  is  necessary  for  anyone  who  would  place 
himself  in  a  position  to  judge  dispassionately  of  the 
career  of  Mr.  Davis,  and  because  they  are  facts  which 
in  the  present  condition  of  our  affairs  we  are  apt  to 
overlook ;  for  it  is  a  part  of  our  fundamental  law  at  this 
time  that  the  Union  is  a  perpetual  one,  and  that  no  State 
or  number  of  States  has  the  right  to  withdraw  from  the 
obligations  justly  imposed  by  the  Federal  Government; 
but  it  is  also  true  that  that  was  not  a  part  of  the  Federal 
Constitution  when  Mr.  Davis  performed  that  part  in 
the  world's  history  by  which  he  will  be  always  remem- 
bered ;  nor  has  any  such  provision  been  inserted  by  the 
process  of  judicial  interpretation,  but  it  has  been  so 
settled  by  the  final  determination  of  a  resort  to  arms 
from  which  there  is  no  appeal. 

It  is  often  said  indeed  that  war  settles  nothing;  but 
there  is  no  government  existing  to-day  whose  internal 
organization  and  external  policy  have  not  been  largely 
determined  by  the  results  of  war.  Of  the  governments 
of  England,  and  of  all  other  European  nations,  it  may 
be  said  that  their  present  forms,  outlines  and  constitu- 
tional guarantees  are  only  the  net  result  of  a  long  series 


Jefferson  Davis  179 

of  civil  wars,  the  conclusions  of  which  have  been  accepted 
in  good  faith  as  the  basis  of  peace. 

We  of  the  South  have  been  so  long  denominated  rebels 
and  traitors  by  those  who  preferred  epithets  to  argu- 
ments, that  we  have  become  quite  indifferent  to  such 
terms;  but  in  point  of  fact  no  such  case  was  or  could 
be  made  out.  Mr.  Davis  was  imprisoned  on  an  unwritten 
charge  of  treason,  and  thousands  of  men  were  indicted 
on  a  like  charge  in  the  Federal  Courts;  but  there  was 
no  law  on  the  statute  book  on  which  any  one  could  be 
convicted  for  having  followed  the  fortunes  of  his  State 
in  a  civil  war,  and  no  one  was  ever  brought  to  trial  on 
that  charge ;  the  only  statute  that  contemplated  anything 
of  the  kind  being  an  act  passed  long  after  the  war 
became  flagrant ;  and  to  have  convicted  under  that  would 
have  been  to  convict  under  an  ex  post  facto  law,  and 
would  have  been  a  plain  violation  of  the  Constitution 
of  the  United  States. 

Upon  that  point,  however,  it  is  but  just  to  say  that 
though  there  was  no  law  under  which  such  a  conviction 
could  be  had,  the  lenity  and  moderation  exhibited  by 
the  conquerors  in  the  hour  of  triumph,  in  that  regard,  is 
unexampled  in  history.  For,  as  Caesar  said :  ' '  The  laws 
are  silent  amidst  arms;"  and  on  previous  occasions  the 
victors  in  violent  civil  wars  troubled  themselves  but 
little  about  legal  or  constitutional  rules.  This  is  a  fact 
that  should  be  borne  in  mind ;  for  if  we  would  have  jus- 
tice done  to  ourselves,  we  must  do  justice  to  others.  It 
is  not  our  part  to  detract  from  the  merits  of  any  man 
who  took  an  honorable  part  in  that  memorable  struggle. 
A  handful  of  brigands  may  join  together  for  the  pur- 
pose of  plunder,  but  there  is  no  great  war  involving  the 
spontaneous  action  of  a  free  people,  that  does  not  rest 
upon  that  strong  moral  sentiment  that  justifies  an  appeal 
to  the  God  of  battles.    There  were  men  on  either  side, 


180  Addresses 

lofty  minded,  pure  in  heart,  men  of  undaunted  courage, 
men  who  in  every  respect  were  the  worthy  successors 
of  Bayard,  the  knight  that  was  without  fear  or  reproach. 
Never  before  in  human  history  had  so  many  men  of  that 
stamp  gathered  together  in  deadly  conflict.  It  does 
honor  to  the  American  character  to  know  that  as  there 
had  never  been  a  war  of  similar  magnitude,  so  there 
never  was  one  so  clearly  based  on  principle,  one  so  little 
marked  by  wanton  cruelty,  and  in  which  a  respect  for 
law  so  well  survived  every  catastrophe. 

It  was,  however,  a  war  of  giants;  and  it  is  appalling 
to  look  back  upon  that  dreadful  interval  between  the 
wordy  contention  and  that  final  settlement,  and  to  mark 
how  everything  was  disjointed,  wrecked,  torn  up,  dis- 
placed, and  how  the  whole  world  rang  and  re-echoed 
with  our  unparalleled  conflict. 

At  the  beginning  of  the  contest  the  South  possessed  an 
unusual  number  of  able  and  brilliant  men;  men  strong 
in  body  and  mind,  strong  in  popular  favor  and  affection ; 
men  long  trained  in  the  arduous  duties  of  public  life; 
men  distinguished  in  war.  distinguished  in  peace;  men 
that  would  have  been  fit  leaders  in  any  enterprise  requir- 
ing vigor  of  mind,  courage  of  heart,  and  the  sagacity 
that  comes  of  close  observation  and  long  experience ;  but 
so  pre-eminent  were  all  the  characteristics  of  Mr.  Davis 
that  when  the  choice  of  a  leader  in  an  enterprise  of  the 
greatest  magnitude  and  the  greatest  peril  came  up  for 
consideration,  no  other  name  was  brought  in  competi- 
tion. His  superiority  over  all  others  was  obvious  and 
self-evident.  He  had  served  in  many  capacities,  and  in 
no  case  had  he  betrayed  a  trust  or  disappointed  public 
expectation.  He  had  received  a  military  education,  and 
thrice  had  he  responded  to  the  call  of  his  country  on 
the  tented  field.  His  career  in  arms  had  been  exten- 
sive and  illustrious.  When  a  young  man  he  had  served 
with  distinction  in  the  Northwest  in  the  Black  Hawk 


Jefferson  Davis  181 

War.  Again  in  the  Indian  War  of  1834  and  1835,  he 
had  borne  a  conspicuous  part.  When  the  Mexican  War 
broke  out  he  had  resigned  his  seat  in  Congress  to  join 
that  army  in  which  he  achieved  the  highest  honor  for 
courage,  sagacity  and  brilliancy  of  execution.  Return- 
ing home  again  he  was  elected  to  a  seat  in  the  United 
States  Senate  at  a  time  when  the  doors  of  the  Senate 
were  opened  to  superior  worth  and  ability  alone,  and 
when  a  place  in  that  body  was  not  the  prize  of  wealth, 
or  something  to  be  attained  by  the  arts  of  the  dema- 
gogue. When  he  took  his  seat  he  had  for  colleagues, 
men  not  unworthy  the  Roman  Senate  while  Rome  sur- 
vived ;  for  Webster,  Clay  and  Calhoun  were  still  there ; 
and  he  saw  the  setting  of  those  intellectual  suns,  whose 
memory  still  gilds  the  past,  and  whose  brilliant  beams 
still  linger  high  in  our  political  heavens ;  and  with  these 
were  others  of  lesser  note,  but  still  remarkable  for  learn- 
ing and  talent ;  and  in  that  company  of  statesmen,  chosen 
from  every  State  in  the  Union,  Mr.  Davis  had  stood 
easily  among  the  highest.  At  that  time,  not  yet  over- 
burdened by  public  duties,  he  was  recognized  as  a 
cultivated  gentleman  of  pleasant  and  agreeable  manners 
— gentle  and  courteous  toward  friend  and  foe;  a  ready, 
fluent  and  skillful  debater,  an  elegant,  forcible  and  pol- 
ished writer,  possessed  of  those  engaging  and  nameless 
qualities  that  serve  to  cement  the  friendships  that  are 
destined  to  stand  all  the  storm  and  stress  of  time  and 
chance;  so  that  any  one  seeing  him  there  in  the  dis- 
charge of  his  public  duties,  or  in  the  charmed  social 
circle  which  he  adorned,  would  never  have  dreamed  that 
his  name  in  a  few  years  would  become  the  watchword 
of  a  conflict  that  would  make  our  rivers  run  with  blood ; 
for  at  that  time,  and  down  to  a  much  later  period,  he 
numbered  among  his  warmest  personal  friends  many 
who  would  have  been  classed  as  his  most  determined 
political  adversaries.    After  a  service  in  the  Senate  that 


182  Addresses 

flung  an  additional  lustre  over  his  own  past,  he  became 
secretary  of  war,  a  position  for  which  he  was  peculiarly 
well  qualified,  and  which  he  filled  in  a  manner  that 
showed  his  especial  fitness  for  the  place ;  for,  during  his 
occupancy  of  that  position,  he  greatly  improved  the 
equipment,  the  discipline  and  the  organization  of  the 
military  service.  As  the  appointed  leader  of  the  Con- 
federacy, it  has  been  customary  to  load  upon  him  all  the 
accumulated  obloquy  of  its  rise,  its  continuance,  and 
its  downfall ;  and  its  whole  creation,  it  has  been  assumed, 
had  its  origin  in  his  fertile  and  deceptive  illusions  of 
empire.  And  yet  nothing  is  apparently  farther  from 
the  truth,  which  in  its  naked  simplicity  is,  that  with  the 
possible  exception  of  his  great  coadjutor,  Lee,  no  man 
entered  upon  the  formation  of  a  new  government  with 
more  reluctance  and  regret.  Let  it  be  laid  to  his  charge 
that  he  labored  under  deplorable  and  fatal  mistakes; 
that  he  thought  that  it  was  possible  or  right  to  perpetu- 
ate an  institution  unwillingly  imposed  upon  his  genera- 
tion, when  it  had  come  to  be  opposed  by  the  predominant 
moral  and  religious  sentiment  of  the  civilized  world; 
that  he  deemed  that  in  an  age  of  railroads  and  elec- 
tricity, a  smaller  people,  placed  under  many  disadvan- 
tages, could  defend  their  territory  as  the  Spaniards 
defended  theirs  against  the  French,  as  the  Swiss 
defended  theirs  in  former  times,  when  such  potent  agen- 
cies were  undiscovered ;  and  that  he  dreamed  that  a  new 
nation  could  be  created,  whose  principal  boundary  should 
be  unmarked  save  by  an  imaginary  line — errors  demon- 
strated by  the  war  itself,  and  which  before  were  doubt- 
ful or  unknown.  It  is  easy  now  to  speak  of  these  things 
with  an  air  of  superior  wisdom.  When  the  storm  has 
lulled,  and  the  sky  is  clear,  the  merest  tyro  can  explain 
to  the  experienced  navigator  by  what  blunder  his  boat 
went  down;  and  can  even  point  out  on  the  chart  the 
rock  on  which  it  was  split;  serenely  regardless  of  the 


Jefferson  Davis  183 

fact  that  in  the  midst  of  the  tempest  the  chart  is  less 
distinct,  the  judgment  more  unsteady. 

It  would  have  been  easy  for  the  southern  people  at 
the  close  of  the  war  to  attempt  to  throw  a  great  part 
of  the  blame  for  its  results  upon  Mr.  Davis ;  and  if  it  is 
creditable  to  them  that  no  such  effort  was  made,  it  is 
equally  creditable  to  him  that  he  made  no  effort  to 
excuse  himself  at  the  expense  of  others,  or  to  avoid  his 
full  share  of  responsibility  for  whatever  had  been  done. 

The  most  important  part  of  the  public  career  of  Mr. 
Davis,  I  must  leave  untouched;  for  with  the  time  at 
my  command  I  can  not  attempt  to  present  even  an  out- 
line of  that  part  of  his  eventful  life  which  became  closely 
and  indissolubly  identified  with  the  Confederacy  over 
which  he  presided;  and  I  must  content  myself  with  the 
expression  of  the  common  sentiment  that  in  that  pro- 
longed and  distressing  crisis  of  our  history  there  was  no 
one  in  the  South  that  could  so  long  and  so  successfully 
have  resisted  the  assaults  that  were  made  by  an  enemy 
strong  in  valor,  invincible  in  determination,  and  who 
speedily  developed  such  resources  as  filled  the  world 
with  surprise  and  astonishment. 

But  the  end  came  at  last,  and  Mr.  Davis  found  him- 
self a  prisoner  in  the  hands  of  an  enemy  whose  ven- 
geance he  had  in  no  manner  sought  to  appease. 

I  remember  that  about  two  years  after  the  close  of 
our  Civil  War,  I  went  down  to  breakfast  in  a  hotel  in 
Baltimore  one  morning.  There  were  but  few  in  the 
room,  and  while  I  was  eating  I  became  aware  that  there 
was  an  unusual  hush  as  if  something  had  taken  place 
or  was  expected.  On  looking  around  I  found  that  the 
servants  and  the  guests  that  were  present  were  gazing 
with  silent  interest  at  a  person  who  was  quietly  eating 
his  morning  meal  and  who  seemed  to  be  absorbed  in  his 
own  memories,  which  would  not  seem  to  be  very  dis- 
quieting, for  his  demeanor  was  calm  and  self-contained. 


184  Addresses 

The  man  was  Jefferson  Davis,  who  had  only  been  released 
the  day  before  from  his  prison  in  Fortress  Monroe,  and 
who  had  arrived  in  Baltimore  during  the  night.  He  was 
somewhat  pale  and  emaciated,  but  not  the  direst  vicis- 
situde, nor  the  chill,  apathetic  air  of  the  dungeon  had 
detracted  from  the  dauntless  energy  of  that  eagle  glance ; 
for  his  was  that  kind  of  fortitude  that  asserts  itself 
where  ordinary  men  quail  with  fear;  that  enduring 
determination  which  marks  the  born  leader  of  men  in 
every  crisis  that  comes  attended  by  all  the  attributes  of 
doubt  and  peril.  He  had  survived  a  catastrophe  almost 
unparalleled  in  history,  a  catastrophe  compared  with 
which  even  the  terrible  consummations  of  the  Greek 
drama  might  seem  to  be  almost  trivial ;  for  when  I  had 
looked  upon  him  last  he  was  the  trusted  leader  of  a 
people  in  the  most  tremendous  war  of  modern  times.  Of 
all  the  names  of  the  living  or  the  dead,  his  had  been  the 
most  on  the  lips  of  men.  Its  sound  had  cheered  men 
onward  when  they  assailed  the  imminent  deadly  breach, 
and  had  revived  in  the  dying  soldier  an  enthusiasm 
which  nothing  but  death  could  quench.  For  years, 
nations  had  gazed  with  undisguised  astonishment  at  the 
prodigies  of  military  energy  and  valor  which  had  been 
displayed  under  his  leadership,  doubting  whether  his 
paramount  statesmanship  and  genius  would  not  in  the 
end  make  up  for  every  kind  of  disadvantage,  and  com- 
pensate for  the  appalling  disparity  of  resources,  of  men 
and  of  money.  From  being  more  than  a  monarch,  he 
had  become  a  wanderer,  a  captive,  a  prisoner ;  and  now 
that  he  was  again  released,  he  was  alone.  The  friends 
who  had  stood  around  him  in  the  darkest  hour  were 
dead  on  many  a  battlefield,  were  expatriated,  or  scat- 
tered far  and  wide ;  his  relatives  and  his  family — victims, 
also,  of  the  same  widespread  calamity — were  far  away. 
Discarding  all  that  Mr.  Davis  may  have  said  or  done,  he 
suffered  that  which  to  avoid  Sardanapalus  had  given 


Jefferson  Davis  185 

himself  to  the  blazing  pyre,  and  Cato  had  fallen  upon 
his  sword,  deeming  death  better  than  defeat. 

There  are  indeed  situations  when  it  demands  an 
exalted  courage  to  meet  the  requirements  of  fate  and 
live.  More  vividly  than  to  us,  who  were  mere  spec- 
tators, the  extent  of  that  reverse  was  visible  to  Mr. 
Davis.  It  was  known  to  him  that  ill-success  makes  few 
friends,  and  that  blame,  cruel  and  uncharitable,  is  sure 
to  follow  close  in  the  footsteps  of  misfortune ;  that  deser- 
tion, injustice  and  detraction  are  the  inseparable  attend- 
ants of  those  who  fail  in  any  high  enterprise. 

When  Napoleon  fell  from  his  lofty  eminence  Lord 
Byron  somewhat  ungenerously  taunted  him  with  his 
overthrow : 

"If  thou  hadst  died  as  honor  dies, 
Some  new  Napoleon  might  arise 

To  shame  the  world  again — 
But  who  would  soar  the  solar  height 
To  set  in  such  a  starless  night?" 

Mr.  Davis  knew  that  language  not  dissimilar  would 
be  addressed  to  him ;  but  there  was  no  other  resemblance 
between  his  fate  and  that  of  the  great  Corsican  except 
the  common  fact  of  defeat;  for  the  French  despot  had 
driven  the  rude  plowshare  of  war  over  the  fairest  fields 
that  the  sun  shone  on,  and,  with  no  other  incentive  than 
wanton  personal  ambition,  he  had  brought  murder  and 
bloodshed,  woes  unending  and  immeasurable,  to  many 
peaceful  and  unoffending  lands  in  Europe,  in  Asia  and 
in  Africa ;  whereas  whatever  had  been  done  by  Mr.  Davis 
had  been  done  in  defense  of  the  soil  on  which  he  was* 
born  and  reared.  So  that  he  no  doubt  consoled  himself 
with  the  reflection  that,  like  Arminius,  he  and  his  had 
been  fighting  for  their  altars  and  their  firesides. 

It  is  greatly  to  the  credit  of  the  people  against  whom 
Mr.  Davis  had  carried  on  four  years  of  warfare  that 


186  Addresses 

they  were  less  disposed  to  be  vindictive  towards  their 
fallen  foe  than  could  have  been  expected  from  many 
previous  utterances.  His  great  rival,  who  had  as  large 
a  heart  as  any,  and  whose  services  in  the  pacification  of 
the  country  after  the  conflagration  of  the  war  had  ceased, 
would  have  been  of  supreme  importance,  had  been  dis- 
patched by  the  hand  of  an  assassin.  Others  survived, 
who  were  akin  to  him  in  magnanimity  of  feeling;  and 
when  Horace  Greeley,  the  life-long  political  enemy  of 
Mr.  Davis,  volunteered  to  go  on  his  bond  to  release  him 
from  prison,  he  performed  an  act  that  will  continue 
to  grow  brighter  and  brighter  as  the  years  go  by. 

And,  indeed,  the  man  that  was  incarcerated  in  that 
fortress,  whose  gloomy  battlements  fronted  the  sea,  was 
of  a  character  to  make  his  keepers  pause.  The  caged 
lion,  condemned  to  roam  his  native  wilds  no  more,  is  a 
lion  still;  and  there  is  that  majesty  in  the  air  of  the 
dethroned  monarch  of  the  forest  that  commands  respect. 
We  are  told  that  when  Caius  Marius  had  been  reduced 
to  captivity,  a  slave  was  sent  to  take  his  life;  but  that 
when  he  looked  on  the  stern  and  commanding  counte- 
nance of  the  overthrown  dictator,  he  threw  aside  his 
dagger,  and  he  that  had  stabbed  many  a  meaner  victim 
to  the  heart,  fled  in  terror,  crying,  "I  cannot  kill 
Caius  Marius!" 

Mr.  Davis  never  appeared  to  better  advantage  than 
when  his  power  had  been  broken,  his  hopes  destroyed. 
The  man  that  had  braved  a  thousand  deaths  on  many  a 
field  of  battle,  where  many  a  comrade  came  to  give  up 
his  life;  who  had  taken  upon  himself  the  most  tremen- 
dous responsibility  that  man  can  assume ;  who  for  years 
had  heard  the  thunder  of  the  besieging  guns  of  a 
million  of  men  that  threatened  his  beleaguered  capital, 
was  not  apt  to  blanch  even  in  an  hour  like  that. 

When  Mr.  Davis  was  set  at  liberty  his  public  life  was 
closed,  for  he  might  already  be  called  "an  old  man, 


Jefferson  Davis  187 

broken  by  the  storms  of  State."  His  public  acts  will 
always  be  a  proper  subject  of  criticism,  and  the  time 
is  yet  distant  when  full  justice  can  be  done;  but  even 
now  it  may  be  said  that  though,  as  might  well  be 
expected,  there  is  hardly  a  disparaging  epithet  that  has 
not  been  applied  to  him,  yet  it  is  to  be  observed  that 
those  who  have  thus  indulged  in  vituperation  have  dealt 
in  generalities,  and  have  either  made  no  specific  charges, 
or  only  such  as  have  been  easily  disproved.  There  is  not 
a  sustained  charge  against  him  of  cruelty  or  avarice  or 
self  seeking,  of  pledges  unredeemed,  of  promises  unful- 
filled, of  friendship  betrayed,  of  obligations  undis- 
charged. With  the  wealth  of  Ormus  and  of  Ind  at  his 
disposal,  the  end  of  the  war  found  him  poor  and  needy. 
"With  that  unlimited  power  which  he  possessed  as  com- 
mander-in-chief of  armies,  and  which  he  might  have 
used  as  a  dictator,  it  is  not  recorded  that  he  ever  abused 
it  for  any  purpose  of  oppression  or  self-aggrandizement. 
Because  he  had  stern  duties  to  perform,  he  has  been 
regarded  by  many  as  a  stern  man.  That  he  was  a  man 
of  positive  and  decisive  character  is  a  fact  well  known. 
Friend  or  enemy,  he  occupied  no  doubtful  place.  His 
views  on  most  questions  were  well  defined;  they  were 
not  rashly  or  lightly  changed,  and  he  possessed  a  certain 
kind  of  persistence  and  obstinacy  which  is  usually  char- 
acteristic of  great  men. 

The  events  of  a  man's  life  may  be  regarded  as  the 
outward  trappings  and  habiliments  with  which  he  has 
been  invested  by  a  more  or  less  implacable  destiny ;  and 
after  all  categories  are  exhausted  we  do  not  see  the  man 
himself,  nor  perceive  the  indefinable  and  subtle  elements 
that  go  to  make  up  a  distinct  personality.  I  think  that 
to  most  men  Mr.  Davis  would  appear,  in  imagination, 
like  Wolsey. 

"Lofty  and  sour,  to  them  that  loved  him  not; 

But,  to  those  men  that  sought  him,  sweet  as  summer." 


188  A  ddr esses 

Of  course,  his  position  during  many  years  must  have 
given  him  an  appearance  of  isolation;  but  it  is  certain 
that  to  those  who  were  intimately  acquainted  with  him 
he  gave  the  impression  of  kindliness  of  heart,  of 
geniality  of  disposition,  and  of  a  cheerful  demeanor.  He 
had  a  peculiarly  strong  hold  on  the  friends  that  he 
made,  and  he  made  friends  during  every  period  of  his 
life.  The  long  devotion  of  his  former  slaves  to  him, 
ending  only  with  death,  is  a  conclusive  testimony  of  the 
humane  tenor  of  his  feelings.  Persons  whom  he  had 
met  in  his  campaigns  in  the  Black  Hawk  War,  when  he 
was  reputed  to  be  the  handsomest,  the  most  free-hearted 
and  companionable  of  all  the  young  officers  in  the  serv- 
ice, remembered  him  after  very  many  years  with  the 
warmest  affection,  which  was  not  effaced  by  the  hostili- 
ties that  divided  them  in  interests  and  in  hopes.  Some 
of  these  visited  him  in  his  latest  years,  and  evinced  all 
the  tenderness  of  friendship  which  time  and  war  could 
not  destroy.  As  a  husband,  a  father,  a  neighbor,  he  dis- 
played the  kindest  and  most  affectionate  disposition. 

A  stormy  life  was  followed  by  a  quiet  old  age,  which 
he  devoted  largely  to  a  vindication,  less  of  himself  than 
of  the  people  who  had  entrusted  their  fortunes  to  his 
keeping.  If  in  the  early  period  of  his  retirement  he 
sometimes  grieved  his  friends  by  public  expressions  that 
recalled  too  vividly  the  bitterness  of  the  past,  the  feel- 
ings of  which  these  were  the  evidence  find  no  trace  in 
the  book  in  which  he  recorded  his  mature  judgment  of 
the  decisive  events  in  which  he  played  such  a  prominent 
part.  Reconciled  with  the  irrevocable  past,  he  was  able 
to  perceive  that  our  great  Civil  War  had  worked  out 
many  beneficial  results,  and  that  the  future  might  open 
up  to  the  united  American  people  such  an  immense  field 
of  usefulness  and  prosperity  as  would  dim  even  the 
brightness  of  their  own  past.     For  that  work  we  owe 


Jefferson  Davis  189 

him  a  debt  of  gratitude;  for,  having  been  much  read 
abroad,  it  has  had  the  effect  to  greatly  mitigate  the 
harshness  with  which  our  people  have  often  been  judged. 
Born  on  the  very  day  when  Napoleon  had  reached 
the  zenith  of  his  power,  and  in  the  very  month  in  which 
it  began  to  decay,  and  dying  in  his  82nd  year,  no  man 
of  our  time  ever  had  so  many  and  such  striking  vicissi- 
tudes as  Mr.  Davis.  From  the  days  of  Adams  and  Jef- 
ferson, through  the  long  period  that  terminated  in  his 
death,  he  was  personally  acquainted  with  almost  every 
distinguished  man  of  his  country  and  his  time;  and  he 
beheld  such  changes  in  all  the  varied  affairs  of  humanity 
as  far  transcended  the  dreams  of  any  generation  that 
had  preceded  him.  Outliving  all  the  chief  actors  in  the 
great  drama  in  which  he  had  played  a  principal  part, 
surviving  Lincoln,  and  Seward,  and  Grant,  and  Lee,  and 
Jackson,  and  Stewart,  how  full  of  memories  must  his 
mind  have  been,  as  he  trod  the  shores  of  that  southern 
gulf  that  broke  in  harmonious  sounds  by  his  secluded 
home!  Perhaps  to  him,  as  to  many  others,  that  com- 
plaining sea,  extending  far  beyond  the  reach  of  human 
vision,  containing  in  its  sombre  depths  so  many  mys- 
teries forever  unexplained,  presented  the  emblem  of  that 
wide  eternity  upon  whose  echoless  shore  are  hushed  all 
the  sounds  of  human  strife.  Or  perhaps  when  the  tem- 
pest spread  its  black  wings  over  the  angry  waves,  it 
recalled  the  stormy  scenes  in  which  his  life  had  been 
so  largely  spent;  and  it  may  be  that  in  the  succeeding 
calm  that  brooded  on  the  quiet  waters  he  perceived  the 
type  of  that  peace  that  awaits  the  tired  mariner  when 
the  uncertain  voyage  of  life  is  over.  Surrounded  by 
friends  and  family  that  had  long  been  as  dear  to  him 
"as  the  ruddy  drops  that  visited  his  sad  heart,"  it  may 
be  that,  weary  of  a  world  of  turmoil,  where  we  see  but 
darkly  and  are  oppressed  with  doubt,  he  was  pleased  to 


190  Addresses 

find  in  the  bottom  of  the  bitter  cup  of  life  that  drop 
of  anodyne,  that  "sweet  oblivious  antidote,"  that  lulls 
every  care  to  sleep. 

But  even  now — dust  to  dust,  ashes  to  ashes.  So  all 
things  mortal  end.  The  flowers  have  been  strewn;  the 
voice  of  the  priest  is  silent;  the  final  requiem  has  been 
sung;  the  last  vibrations  of  the  funeral  bell  still  linger 
faintly  on  sea  and  land ;  and  the  chieftain,  whose  strange 
career  is  so  deeply  impressed  on  the  page  of  history, 
having  received  God's  great  amnesty,  has  entered  upon 
that  last  repose  which  shall  never  more  be  disturbed  by 
the  voice  of  praise  or  blame. 

RESOLUTIONS 

The  chair  then  announced  music  by  the  choir — "0, 
Lord,  Kebuke  Me  Not,"  which  was  effectively  rendered. 

The  following  resolutions  were  read  by  Hon.  W.  E. 
Hemingway,  and  on  motion  were  adopted  by  unani- 
mous vote: 

To  the  Hon.  John  G.  Fletcher,  Chairman: 

The  brilliant  career  of  Jefferson  Davis  has  drawn  to 
a  close. 

Millions  of  enlightened  beings  lavished  upon  him  the 
bounty  of  their  love;  from  many  millions  more  he 
extorted  admiration. 

Nature  gave  to  him  her  rarest  talents;  discipline 
exhausted  its  skill  and  powers  in  their  development. 

He  explored  all  the  sources  of  knowledge,  the  mines 
and  the  heights,  and  acquired  a  learning  that  was  uni- 
versal and  a  culture  that  was  perfect. 

He  entered  the  arena  of  life  equipped  for  all  its 
emergencies.  Scholar,  soldier,  orator,  statesman,  author 
— great  as  either,  great  as  all,  he  stood  foremost 
among  the  illustrious  men  of  his  time,  and  no  part  of 
his  complete  manhood  suffered  by  any  contrast.    On  the 


Jefferson  Davis  191 

field  of  battle,  in  the  halls  of  Congress,  in  the  cabinet 
of  the  nation,  and  as  president  of  the  Confederacy,  he 
met  the  fullest  expectation  of  his  friends  and  disarmed 
the  exacting  criticism  of  his  enemies,  by  a  uniform  dis- 
play of  courage,  intelligence  and  devotion  to  duty. 

In  the  seclusion  of  his  home,  bearing  upon  his  devoted 
head  the  concentrated  suffering  of  our  people  in  defeat, 
he  illustrated  the  principles  of  heroic  fortitude  and 
sacrifice  to  convictions,  that  increased  our  love  and 
reverence. 

In  every  field  of  his  endeavor,  genius  directed  the 
use  of  his  faculties  and  wrought  great  deeds.  His  ideas 
of  the  true  principles  of  government  were  well  defined, 
and  with  the  resolve  of  a  patriot,  in  the  light  of  con- 
scientious guidance,  he  sought  to  maintain  them,  and 
thereby  promote  the  welfare  of  his  country,  and  the 
prosperity  and  happiness  of  his  countrymen. 

If  at  any  time  during  the  course  of  his  exciting  career 
it  was  not  given  him  to  see  the  right,  it  was  to  be 
ascribed  to  the  frailties  which  inhere  in  humanity — 
the  constancy  of  a  lifetime  testifies  to  the  rectitude  of 
his  purpose.  In  the  evening  of  his  life  he  saw  all  his 
great  contemporaries — Lee,  Grant,  Lincoln,  Jackson  and 
the  rest — pass  away.  Through  the  golden  sunset  he  has 
gone  to  join  them,  where,  with  the  film  of  humanity 
removed,  they  will  know  that  each  struggled  for  the 
right  as  it  was  given  him  to  view  it. 

"In  private  life  he  preserved  his  integrity  unstained 
and  practiced  the  best  rules  of  morality."  He  was  a 
worthy  exponent  of  a  people's  aspirations  and  deserved, 
won  and  enjoyed  their  undivided  admiration,  confidence 
and  devotion,  increasing  with  the  years.    Therefore,  be  it 

Resolved,  That  we  mourn  with  his  countrymen  the 
loss  of  his  presence,  and  acknowledge,  with  pride  the 
hallowed  legacies  of  his  genius  to  mankind. 

Resolved,  That  we  point  to  his  heroism,  culture  and 


192  Addresses 

purity  of  life  as  an  example  for  our  youths,  who  aspire 
to  high  and  heroic  things;  and  we  patiently  and  confi- 
dently await  the  time  when  just  public  judgment  will 
assign  to  him  the  place  he  deserves  among  the  world's 
great  men. 

Resolved,  That  we  tender  to  his  bereaved  family  the 
sincere  assurance  of  our  sympathy. 

W.  E.  Hemingway, 
W.  S.  Dunlop, 
W.  E.  Woodruff, 
Ben  S.  Johnson, 
G.  W.  Caruth, 

Committee. 


CONFEDERATE  DEAD 

Memorial  Address  at  the  Annual  Ceremonies  of  the  Confederate 
Memorial  Day 


CONFEDERATE  DEAD 

In  accordance  with  a  custom  that  has  now  been  conse- 
crated by  time  and  a  long  approval,  we  meet  on  this 
anniversary  to  pay  a  tribute  of  respect  and  honor  to 
the  gallant  dead,  who,  gathered  here  from  all  parts  of 
our  wide  territorial  empire,  now  rest,  peacefully,  side 
by  side,  under  the  spell  of  that  last  sleep  which  no 
magician's  wand  can  break. 

Nearly  a  quarter  of  a  century  has  elapsed  since  the 
American  people,  in  an  hour  of  enthusiasm  such  as 
serves  to  mark  an  epoch  in  the  history  of  a  nation, 
appealed  to  the  arbitrament  of  the  sword  and  dared  to 
invoke  the  dread  name  of  the  God  of  Battles. 

The  contest  that  ensued  was  of  a  magnitude  commen- 
surate with  the  destiny  of  our  people.  Never  before  in 
the  annals  of  mankind  had  war  been  waged  on  a  scale 
so  gigantic.  From  one  end  of  the  land  to  the  other  there 
was  a  marshaling  of  hostile  forces,  and  the  continent 
seemed  to  reel  under  the  tread  of  contending  armies. 
In  every  village  was  heard  the  martial  drum-beat,  and 
the  glittering  ensigns  of  war  floated  on  every  breeze. 

To  this  fell  work  of  mutual  destruction  the  American 
people  brought  to  bear  all  of  that  directness,  earnest- 
ness and  energy  which  had  characterized  them  in  civil 
life.  The  carnage  was  immense.  The  fields,  the  rivers 
and  the  seas  were  incarnadined  with  fraternal  blood, 
and  for  four  long  years  of  the  agony  of  our  national 
Gethsemane  the  cry  of  anguish  arose  from  millions  of 
breaking  hearts  to  the  unrelenting  heavens;  and  at  last 
when  the  combat  was  over  and  the  rainbow  of  peace 
revealed  itself  on  the  retreating  clouds  of  war,  and  we 
had  leisure  to  count  the  cost  of  our  audacious  experi- 
ment, we  found  that  we  had  expended  an  amount  of 

195 


196  Addresses 

treasure  which,  being '  judiciously  applied,  would  easily 
have  solved  all  the  difficulties  of  a  pecuniary  or  material 
sort  for  which  the  war  was  begun,  and  would  still  have 
left  an  immense  fund  which  might  have  been  wisely 
employed  in  educating  the  masses  of  the  poor,  in  pro- 
viding for  the  wants  of  the  sons  and  daughters  of  afflic- 
tion, in  hastening  the  march  of  national  progress  and 
in  promoting  that  general  welfare  of  the  people  for 
which  our  government  was  organized. 

Instead  of  these  beneficial  results,  which  might  have 
been  achieved  with  the  treasure  expended,  we  found  an 
empty  exchequer,  a  public  debt  of  alarming  proportions, 
lonely  and  desolated  landscapes,  the  wrecked  homestead 
and  the  ruined  city,  a  disorganized  society,  all  that  tre- 
mendous variety  and  accumulation  of  sorrow  and  afflic- 
tion that  follows  wherever  the  red  plowshare  of  war 
has  been  driven. 

Certainly,  it  may  well  be  concluded  that  the  science 
of  government  is  still  in  its  infancy,  since,  though  long 
foreseen,  it  could  not  avert  such  a  terrible  calamity. 

But,  on  the  other  hand,  let  us  not  repine.  "Para- 
dise," said  Mahomet,  "lies  beneath  the  shadow  of 
swords. ' '  If  material  and  pecuniary  interests  alone  had 
been  at  stake,  the  war  would  have  been  easily  prevented. 
Whatever  may  be  said  of  the  depravity  of  man,  it  should 
be  some  consolation  to  reflect  that  no  great  war  between 
civilized  nations  or  communities  has  ever  been  waged  for 
material  interests  alone.  To  move  great  masses  of  man- 
kind, to  render  them  forgetful  of  the  pleasures  and 
security  of  home,  and  insensible  to  the  hardships  and 
dangers  of  war,  it  is  necessary  to  appeal  to  some  intel- 
lectual or  moral  ideal,  some  principle  of  right  to  be 
defended,  some  feeling  of  injustice  to  be  avenged.  To 
them  must  be  proclaimed  the  necessity  of  a  belief  in 
the  unity  of  God,  or  they  must  be  told  that  the  sepulchre 
of  Christ  is  being  defiled  by  infidels,  that  liberty  is  in 


Confederate  Dead  197 

danger,  or  that  the  laws  are  being  trampled  on,  so  that 
the  people  may  verily  believe  that  their  cause  is  just 
and  pure  in  the  sight  of  high  heaven.  As  the  Christian 
and  the  Saracen  fought  for  the  honor  of  the  same  God, 
as  each  believed  that  God  to  be,  so  even  in  all  wars  such 
as  I  have  mentioned  it  is  the  same  worship  of  the  same 
ideal  seen  from  different  points  of  view,  that  animates 
the  hostile  legions  when  they  stand  arrayed  against  each 
other  on  the  edge  of  battle. 

Think  of  the  men  that  lie  here  on  either  side  of  us 
in  their  crowded  graves.  Was  it  any  taint-  of  selfish- 
ness or  baser  sentiment  that  has  assembled  them  here  in 
their  last  retreat?  No!  Each  one  of  them  fell  a  sacri- 
fice to  some  ideal  that  soared  as  far  above  his  daily  life 
as  yonder  sky  soars  above  the  grave  where  he  lies;  the 
source  of  an  enthusiasm  that  made  him  oblivious  to 
wounds  and  to  death. 

A  zeal  of  that  kind  that  influences  whole  communities 
is  not  born  in  a  day.  Revolutions,  it  is  said,  have  long 
roots  in  the  past.  The  germs  of  our  Civil  War  were 
planted  long  before  our  government  was  formed.  It 
was  in  vain  that  the  fathers  of  the  republic  recognized 
their  existence  and  sought  to  deaden  their  influence; 
they  grew  with  our  national  growth;  and  the  various 
checks  and  palliations  applied  from  time  to  time  by  the 
great  legislators  and  expounders  of  the  Constitution, 
only  served,  by  postponing  the  conflict,  to  make  the 
explosion  more  terrible  and  fatal  in  the  end. 

But  let  us  not  complain.  No  nation  has  ever  attained 
to  wealth,  power  and  prosperity  without  experiencing 
the  evils  of  civil  war.  The  vigorous  tree  of  Anglo-Saxon 
liberty,  which  now  extends  its  protecting  branches  over 
the  most  flourishing  regions  of  the  earth,  and  which  con- 
tinues to  thrive  with  perpetual  vigor,  was  planted  on  the 
field  of  civil  strife,  and  for  centuries  it  has  been  rocked 
by  storm  and  watered  with  human  blood. 


198  Addresses 

With  that  conflict  of  interest  and  sentiment  which  was 
the  inevitable  outcome  of  the  rapid  development  of  our 
resources,  the  expansion  of  commerce  and  industry,  the 
swift  advance  of  our  civilization,  and  our  different 
environments,  it  was  necessary  that  we  should  pay  the 
heavy  penalty  of  our  greatness. 

But  that  penalty  has  not  been  without  some  compen- 
sating advantages.  On  both  sides  the  war  was  nobly 
fought ;  and  wherever  the  combat  raged  American  forti- 
tude and  valor  received  new  illustrations;  nor  are  the 
annals  of  our  deadly  strife  stained  with  the  cruel 
slaughter  of  the  helpless  and  the  innocent,  as  has  too 
often  happened  in  other  lands,  where  the  voice  of  human- 
ity has  been  stifled  by  the  clash  of  arms;  nor  has  there 
been  any  other  instance  in  the  long  and  bloody  record 
of  civil  wars  in  which  the  slaughter  ceased  when  the 
curtain  fell  on  the  last  field  of  battle.  Nor  has  the  pro- 
tracted and  desperate  encounter  served  in  the  least  to 
dwarf  our  destiny,  or  to  check  our  onward  career;  but, 
on  the  contrary,  we  are  now  entering  upon  a  loftier  and 
nobler  scene  of  usefulness  than  ever  before. 

I  have  mentioned  the  vast  and  incalculable  national 
losses  caused  by  the  war ;  but  these  were  not  the  heaviest 
that  we  sustained.  Bountiful  nature  has  woven  her 
carpet  of  grass,  and  sprinkled  it  with  flowers,  where  once 
the  embattled  armies  stood;  and  the  diligent  hand  of 
man  has  replaced  what  the  fury  of  war  had  destroyed ; 
but  where,  0  where!  are  the  generous  youth  who 
marched  out  under  the  hostile  banners,  elate  with  cour- 
age and  devotion,  resolute  to  conquer  or  to  die?  Let 
these  mute  but  eloquent  monuments  of  the  dead,  these 
cypresses  that  fling  their  shadows  over  the  roses  in 
bloom,  make  their  mournful  and  solemn  response. 

That  was  a  loss  that  can  never  be  made  good,  and 
which  no  man  can  compute.  The  young  heroes  went 
forth  on  either  side,  the  hope  and  pride  of  the  country, 


Confederate  Dead  199 

only  to  be  mowed  down  in  their  ranks,  where  Death,  the 
great  reaper,  was  gathering  his  sheaves  by  the  lurid 
light  of  battle.  These  headstones  are  the  silent  memo- 
rials of  men  whose  genius  in  later  years  might  have 
moved  the  world  by  the  splendors  of  eloquence  or  song; 
who  might  have  enlarged  the  boundaries  of  science  and 
of  art,  or  whose  active  benevolence  might  have  alleviated 
many  a  sorrow ;  but  now  over  all  these  potentialities  for 
good  and  for  usefulness  rests  the  sombre  and  leaden  pall 
of  death. 

Nearly  twenty  years  have  gone  by  on  rapid  wing  since 
the  sword  was  returned  to  its  sheath  and  the  last  hostile 
shot  was  fired,  and  as  many  times  has  returning  spring 
shed  God 's  benediction  of  flowers  on  these  lowly  graves ; 
and  yet  when  the  sun  goes  down  tonight  the  aged  mother 
will  sit  in  the  waning  twilight,  and  will  try  to  still  the 
beatings  of  her  heart,  so  that  she  may  hear  once  more 
the  footsteps  of  her  son  in  the  echoing  halls  of  memory ; 
and  the  woman  whose  golden  or  whose  raven  hair  is 
streaked  with  silver,  will  recall  with  a  silent  tear  the 
betrothed  of  her  heart,  who  sleeps  on  the  field  of  honor ; 
while  many  a  friend  and  brother,  and  father  and  sister, 
still  mourns  for  the  unreturning  brave.  To  them,  and 
to  all  of  us,  sad  memories  come  trooping  back  from  those 
cruel  years  to  haunt  and  lay  siege  to  the  stricken  heart. 

An  ancient  historian  has  left  us  an  account  of  the 
funeral  ceremonies  performed  at  Athens,  on  the  occa- 
sion of  the  reception  of  the  first  victims  slain  in  the 
Peloponesian  War;  the  tents  that  had  been  spread  for 
three  days  to  receive  the  bodies  of  the  heroes ;  the  affect- 
ing sight  of  their  swords  and  shields ;  the  empty  couches 
that  represented  those  whose  bodies  could  not  be  found ; 
all  the  outward  signs  and  manifestations  of  grief;  the 
tears  and  sobs  of  fathers  and  mothers,  of  brothers  and 
sisters;  the  uncontrollable  lamentations  of  the  afflicted 
multitude. 


200  Addresses 

On  that  occasion  Pericles,  the  greatest  man  and  the 
most  eloquent  orator  of  his  age,  delivered  an  oration 
in  which  he  said  that  ' '  when  young  men  die,  it  is  to  the 
country  as  if  the  year  had  died  in  its  spring. ' ' 

Yes,  and  so  it  was  with  those  whose  deeds  and  whose 
fame  we  commemorate  today.  The  year  has  died  in  its 
spring ;  arrayed  in  its  leafy  garments,  and  crowned  with 
roses;  the  tender  light  of  the  vernal  sun  faded  from  its 
eyes,  which  are  forsaken  of  the  hope  of  the  golden  har- 
vest and  the  reeling  profusion  of  the  autumnal  vintage. 

On  the  same  occasion  the  orator  also  said: 

"In  giving  up  their  lives  for  their  country,  they  have 
acquired  a  fame  which  shall  never  grow  dim,  and  the 
most  splendid  sepulture.  I  speak  less  of  the  place 
where  they  are  buried  than  of  the  vast  tomb  of  their 
glory  made  memorable  for  all  time;  in  which  they 
repose  forever.  For  the  whole  world  is  the  mausoleum 
of  illustrious  men;  and  it  is  not  merely  a  column  or  an 
inscription  which  shall,  speak  to  their  country  of  the 
virtues  of  the  honored  dead." 

On  another  and  a  similar  occasion,  the  burial  of  the 
dead  slain  at  Cheroneia,  Demosthenes  said: 

"Wherever  men  go  into  battle,  some  must  come  out 
as  victors  and  som  .  lquished;  but  I  do  not  hesitate 
to  say  that  those  J  in  battle  on  either  side  are 

not  to  be  reckoner  the  defeated;  and  that  they 

all  have  equally  gain,\.  e  victory.  As  for  those  who 
survive,  the  honor  of  £  e*contest  must  be  awarded  accord- 
ing to  the  will  of  the  gods ;  but  all  those  who  have  fallen 
in  the  ranks  have  made  equal  sacrifices  to  obtain  it." 

These  utterances  that  come  to  us  across  wide  seas 
and  the  wider  waste  of  long  centuries,  uttered  in  a 
language  that  has  long  ago  died  on  the  lips  of  men,  words 
that  would  speak  peace  to  the  heart  of  Rachel  weeping 
for  her  children  and  refusing  to  be  comforted  because 
they  are  not — as  well  suited  to  the  present  occasion  as 


Confederate  Dead  201 

they  were  to  those  on  which  they  were  spoken — are  as 
the  deep  calling  to  the  deep,  proclaiming  the  eternal 
brotherhood  of  man  in  that  sentiment  of  bereavement 
and  sorrow  which  is  the  sad  heritage  of  his  race. 

I  have  been  told  that  sometimes  during  our  civil  strife, 
when  opposing  forces  would  be  encamped  on  different 
sides  of  a  stream,  it  would  happen  that,  in  the  silent 
watches  of  the  night,  soldiers  on  either  side  would  hold 
converse  across  the  winding  river;  and,  that  at  such 
times,  mindful  of  the  uncertain  issue  of  the  morrow's 
fray,  and,  remembering  their  common  lineage,  all  feel- 
ings of  bitterness  would  be  laid  aside. 

And  so  it  is  here  in  this  last  encampment  of  recon- 
ciliation and  peace.  The  once  hostile  soldiers  whose 
tombs  fair  hands  will  deck  with  impartial  flowers  today, 
rest  here  upon  their  arms  by  the  great  and  silent  river 
of  death,  with  no  vestige  of  human  -passion  or  pride  to 
divide  them  in  their  unbroken  slumber. 

But,  do  they,  indeed,  rest  here/ speechless  by  that  dim 
and  mysterious  river? 

"He  that  hath  found  some  fledged  bird's  nest,  may  know, 
At  first  sight  if  the  bird  be  flown, 
But  what  fair  field  or  grove  he    '    -s  in  now, 
That  is  to  him  unknown." 

In  other  times  and  among  o  :-<  '  ..ces,  it  was  thought 
that  the  souls  of  dead  heroes  Aered  in  the  beautiful 
Elysian  fields;  or  that  they  sat  'in  Valhalla,  with  the 
immortal  gods  at  their  high  feast;  or  that  they  were 
transported  to  the  happy  hunting  grounds  of  the  Great 
Spirit.  Perhaps  that  which  most  serves  to  proclaim  the 
superiority  of  man  is  not  to  be  found  in  the  long  line 
of  his  victories  over  unfriendly  circumstances  and  over 
himself,  but  rather,  in  the  fact,  that  in  all  time,  just 
where  Nature  and  Destiny  seem  to  have  conspired  for 
his  perfect  overthrow,  amid  the  darkness  of  the  grave 


202  Addresses 

and  the  desolation  of  the  tomb,  he  has  defiantly  planted 
the  proud  banner  of  his  undying  hope.  In  spite  of  the 
sternness  of  his  reiterated  summons,  he  audaciously 
denies  the  prerogative  of  Death,  and  believes  in  a  world 
beyond,  upon  which  no  mortal  eye  has  rested. 

Your  oblations  are  not  proffered  in  spirit  to  lifeless 
ashes  or  insensate  clay;  nor  are  they  dedicated,  alone 
to  memory;  they  are  dedicated  also  to  hope,  which, 
drop  by  drop,  shall  put  memory  to  sleep.  Time, 
the  destroyer,  is  also  time  the  consoler.  What  are 
the  sorrows  of  a  single  generation  compared  with  the 
duration  of  national  life?  To  some  of  us  it  seems  but 
as  yesterday  that  the  battle  flags  were  furled  at  the  sun- 
rise of  peace;  and  yet  in  that  little  period  one-half  of 
the  human  race  as  it  then  existed,  have  departed  for 
that  silent  land  toward  which  all  earthly  footsteps  tend ; 
and  when  that  brief  interval  shall  be  doubled,  only  a 
handful  of  veterans  will  remain  of  those  who  partici- 
pated in  the  greatest  war  of  modern  times;  and  then 
in  a  few  years  that  war,  with  all  of  its  incidents,  will 
be  as  exclusively  a  matter  of  history  as  the  wars  between 
Rome  and  Carthage.  Thus  it  is  that  every  generation 
bears  its  load  of  sorrows  but  a  few  short  steps,  and  then 
deposits  it  in  the  capacious  receptacle  of  the  tomb. 

Repair,  then,  with  your  lovely  flowers,  to  adorn  the 
graves  of  the  dead.  Time  was,  when  these  stainless  lilies 
and  these  red  and  white  roses  that  grew  side  by  side 
in  the  same  garden,  vieing  with  each  other  in  beauty, 
and  shedding  their  mingled  perfume  on  the  wandering 
air,  were  made  the  unwilling  badges  of  hostile  squad- 
rons ;  but  today  we  consecrate  them  to  a  more  congenial 
and  a  nobler  use.  Cultivated  and  improved  by  the  hand 
of  man,  they  seem  to  attend  on  his  footsteps  through  life 
as  if  quickened  by  some  divine  instinct  of  love  and  grati- 
tude; they  smile  on  the  couch  of  the  new-born  child, 
they  crown  our  festive  boards;  they  shed  their  beauty 


Confederate  Dead  203 

and  their  fragrance  on  the  spotless  brow  of  the  blushing 
bride  in  the  hour  of  joy,  and  in  their  timid  loveliness 
they  wind  their  wreaths  about  the  portals  of  the  tomb, 
as  if  seeking  for  us  to  dispel  the  gloom  that  pervades 
the  house  of  death.  They  appeal  to  us  in  a  language 
that  no  words  can  express.  In  them  Nature,  as  if  weary 
of  trying  to  instruct  us  by  her  laws,  seems  to  breathe 
her  silent  blessing  upon  us  as  we  pass.  What  were  all 
pictures  and  works  of  art,  if  these  lovely  symbols  of 
immortality  should  bloom  no  more ! 

These  flowers  that  you  have  brought  are  among  the 
richest  of  our  possessions.  ' '  Solomon  in  all  his  glory  was 
not  arrayed  as  one  of  these."  We,  like  them,  are  but 
the  children  of  an  hour ;  and  very  soon  it  will  not  mat- 
ter whether  we  have  died  at  four  score  or  in  the  morning 
of  life. 

"Die  we  early,  die  we  late, 
God's  design  is  consummate." 

It  is  the  memory  left  behind  which  may  kindle  the 
grave  with  glory,  or  shroud  it  with  gloom.  In  that 
respect  those  whose  tombs  we  visit  today  are  most  happy ; 
for  the  pyramids  that  weigh  on  the  proud  dust  of 
Egypt's  kings,  reared  by  unwilling  hands,  are  but  petty 
monuments  of  human  vanity,  compared  with  the  sponta- 
neous offerings  of  Nature  and  affection  with  which  a 
united  people  shall  today  adorn  the  last  resting  place  of 
the  unforgotten  and  heroic  dead. 


BECCARIA  AND  LAW  REFORM 

Address  Delivered  as  President  of  the  Arkansas  State  Bar  Asso- 
ciation at  its  Meeting  Held  at  Little  Rock, 
on  January  3,  1900 


BECCARIA  AND  LAW  REFORM 

For  the  brief  time  that  is  allowed  me  to  throw  myself 
on  your  indulgence  on  this  occasion,  I  wish  to  say  some- 
thing of  the  services  rendered  to  the  world  at  large  by 
Beccaria,  the  author  of  that  remarkable  book  called 
"Crimes  and  Punishments";  a  work  that  has  had  an 
immense  influence  in  shaping  the  laws  which  at  present 
prevail  in  all  of  the  civilized  countries  of  the  earth ;  and 
which  marks  one  of  the  most  curious  episodes  in  the 
history  of  jurisprudence. 

If  we  except  Montesquieu,  whose  work  was  rather  crit- 
ical and  suggestive  than  constructive,  Beccaria  was  the 
first  of  the  modern  law  reformers  in  point  of  time ;  and, 
if  we  judge  solely  by  benefits  conferred,  he  was  by  far 
the  greatest  of  all. 

Paradoxical  as  it  may  seem,  the  fame  of  Beccaria  has 
been  dimmed  of  late  years  by  the  good  fortune  which 
crowned  his  labors.  He  does  not  survive,  as  does  Charles 
Darwin,  who,  by  first  giving  a  definite  form  to  theories 
partly  scientific  and  partly  speculative,  has  linked  his 
name  with  a  controversy  that  will  probably  endure  as 
long  as  the  origin  of  our  race  shall  continue  to  be  a 
subject  of  dispute.  Beccaria  may  rather  be  compared 
to  John  Harrison,  the  inventor  of  the  chronometer, 
which  he  presented  to  the  world  in  such  a  state  of  per- 
fection that  it  was  accepted  at  once;  an  invention  that 
affords  security  to  sailors  on  every  sea,  and  that  pro- 
tects in  calm  and  in  storm  the  vast  marine  commerce 
of  the  world;  thus  conferring  incalculable  blessings  on 
millions  of  men,  of  whom  not  one  perhaps  of  ten  thou- 
sand ever  heard  his  name. 

No  one  can  understand  the  results  of  the  teachings  of 
Beccaria  without  acquainting  himself  with  the  legal  and 

207 


208  Addresses 

social  system  that  existed  in  his  day  and  time;  but  the 
subject  is  so  vast  and  painful  that  I  cannot  attempt  to 
explore  it,  except  in  a  cursory  manner,  without  running 
the  risk  of  exhausting  your  patience.  I  must  content 
myself  by  noting  a  very  few  of  the  evils  then  existing. 

It  may  be  considered  as  an  accepted  fact  that  acquired 
habits  persisted  in  for  several  generations  become  to  a 
greater  or  less  extent  hereditary;  and  that  they  will 
continue  until  counteracted  by  other  influences.  This 
principle  applies  to  man  morally,  intellectually,  and 
physically;  and  to  the  lower  animals  as  well.  It  is  not 
a  discovery  due  to  scientific  research,  but  was  known 
in  times  remote;  as  was  evident  whenever  men  spoke 
of  family  traits  and  of  ancestral  vices  and  virtues;  and 
is  summed  up  in  the  biblical  phrase  that  tells  us  that  the 
sins  of  the  fathers  are  visited  upon  the  children  to  the 
third  and  fourth  generation. 

It  is  only  during  the  present  century  that  humani- 
tarian views  have  come  to  be  generally  received.  Pre- 
vious to  that  time  continual  wars  and  habits  of  oppres- 
sion and  brutality  had  well-nigh  extinguished  all  senti- 
ments of  that  kind;  so  that,  except  where  men  were 
bound  together  by  ties  of  kinship  or  love  or  friendship, 
pity  for  the  sufferings  of  others  was  rarely  visible  in 
the  conduct  of  life.  Had  the  result  been  otherwise  the 
rule  that  I  have  mentioned  as  to  the  transmission  of 
acquired  qualities  would  have  been  completely  disproved ; 
for  the  cruel  instincts  of  men  had  been  most  assiduously 
cultivated  at  the  expense  of  all  other  qualities  for  many 
centuries.  Burke,  in  the  year  1756,  computed  the  num- 
ber of  those  slain  in  war  from  the  earliest  dawn  of 
history  down  to  that  date  at  3,500,000,000,  which  hap- 
pens to  be  as  estimated  just  two  and  a  half  times  the 
present  population  of  the  globe.  This  takes  no  account 
of  the  maimed  and  the  wounded,  of  the  sorrows  of  the 
survivors,  of  families  broken  up  and  reduced  to  penury 


Beccaria  and  Law  Reform  209 

and  want,  of  whole  nations  sold  into  slavery,  of  the  two 
grim  phantoms  of  famine  and  pestilence,  faithful  attend- 
ants on  the  chariot  of  the  god  of  war,  that,  following 
in  his  footsteps,  destroyed  immense  numbers  of  the  rem- 
nant that  he  had  spared.  Nor  does  it  take  into  account 
the  general  demoralization  that  war  inevitably  produces. 

These  interminable  wars,  which  were  all  wicked  and 
unjust  on  one  side  or  the  other,  and  often  on  both  sides, 
serve  to  indicate  unmistakably  that  indelible  strain  of 
insanity  in  our  blood  that  is  more  conspicuous  in  the 
history  of  nations  than  in  the  lives  of  individual  men. 
This  is  generally  referred  to  as  the  imperfections  of 
human  nature;  but  the  term  is  too  mild.  The  lower 
animals  have  imperfections ;  but  they  do  not  lead  to  such 
terrible  results.  There  is  small  consolation  in  reading 
of  the  accumulated  horrors  of  the  past  derived  from  this 
source,  though  they  are  now  covered  by  the  ashes  of 
eternal  silence. 

The  early  Romans  were  not  a  cruel  people,  even  when 
judged  by  modern  standards;  but  by  reason  of  wars, 
both  foreign  and  domestic,  the  national  character  was 
revolutionized  until  their  descendants  reached  a  degree 
of  ferocity  that  at  present  only  excites  sentiments  of 
horror  and  detestation. 

With  the  Romans  war  was  the  normal  condition ;  and 
the  government  was  a  well  organized  system  of  robbery 
and  plunder.  For  700  years  the  temple  of  Janus  was 
only  closed  thrice;  and  then  only  for  brief  intervals. 
The  gladiatorial  exhibitions  sum  up,  though  they  do  not 
exhaust,  the  catalogue  of  Roman  cruelties.  On  the  occa- 
sion of  an  unimportant  victory  the  Emperor  Trajan 
gave  an  exhibition  in  which  10,000  gladiators  engaged  in 
the  work  of  mutual  extermination  for  the  amusement 
of  the  people  of  all  classes  and  ranks.  On  such  occa- 
sions ladies  of  the  highest  station  gave  the  silent  signal 
which  consigned  the  unskillful  or  unlucky  combatants 


210  Addresses 

to  instant  death.  Choice  seats  were  reserved  for  the 
Vestal  Virgins  whose  lives  were  consecrated  to  the  service 
of  the  gods.  These  exhibitions  were  given  in  every  con- 
siderable town  and  city  throughout  the  vast  dominions 
of  Rome  for  600  years.  "We  may  judge  of  the  number 
of  the  slain  in  these  contests  when  we  are  told  by 
Justyn  Martyr  that  80,000  gladiators  perished  in  the 
revolt  of  Spartacus. 

It  was  this  feeling  of  insensibility  to  human  suffering 
that  constituted  one  of  the  principal  legacies  that  dying 
Rome  left  to  the  petty  nations  that  parcelled  out  among 
themselves  her  immense  domain;  and  which  soon  bet- 
tered the  instruction  that  they  had  received. 

The  Middle  Ages,  beginning  with  the  fall  of  the  West- 
ern Empire,  about  the  year  500,  and  extending  to  about 
the  year  1500,  may  well  be  said  to  embrace  about  the 
darkest  period  of  our  race.  Its  history  is  little  else 
than  a  narrative  of  incessant  wars,  tyranny  unbridled, 
ignorance,  superstition,  persecution,  murders,  massa- 
cres, and  misrule.  No  doubt  there  were  many  good  men 
and  women  in  those  days  of  crime  and  disorder,  treading 
the  narrow  and  unsafe  path  of  duty  with  fidelity  to  the 
highest  ideals  that  have  been  conceived;  but  they  were 
not  sufficiently  numerous  to  give  direction  to  public 
affairs;  and  their  names,  unstained  by  the  prevailing 
guilt,  have  been  omitted  from  the  pages  of  history. 
Their  influence  may  have  survived  to  some  extent;  but 
their  memory  for  the  most  part  has  perished. 

The  close  of  that  era  was  marked  by  the  revival  of 
learning;  but  when  the  new  wine  was  put  into  the  old 
bottles  they  burst;  and  social  conditions,  so  far  from 
showing  any  improvement,  for  a  long  time  were  worse 
than  they  were  before.  Nearly  300  years  of  turmoil 
and  bloodshed  were  to  ensue  before  the  angry  elements 
began  to  subside,  and  more  rational  views  of  life  could 
be  seriously  entertained.     In  times  comparatively  mod- 


Beccaria  and  Law  Reform  211 

era,  Louis  XIV.  waged  war  in  the  spirit  of  Attila  or 
Genghis  Khan.  He  burned  more  than  a  hundred  towns 
and  cities  in  the  Low  Countries,  and  made  of  the  rich 
Palatinate  a  desert. 

I  have  said  nothing  about  the  thousand  and  one 
religious  persecutions,  kindled  and  kept  alive  by 
fanatics  who  had  conceived  the  strange  fancy  that  they 
could  people  heaven  by  depopulating  the  earth ;  a  delu- 
sion that  filled  the  centuries  with  sorrow  and  lamenta- 
tions. The  subject  is  so  dark  and  uninviting  that  few 
care  to  dwell  on  it  now;  it  is  one  of  the  nightmares  of 
history  that  we  are  glad  to  forget. 

It  was  inevitable  that  a  passion  that  was  well-nigh 
universal  should  invade  the  realms  of  literature  and  art. 
Dante,  drawing  aside  the  curtain  that  concealed  the 
unknown  future,  regaled  mankind  with  the  spectacle  of 
agonies  that  fortunately  they  were  unable  to  inflict,  but 
which  art  strove  to  fix  on  canvas  and  to  perpetuate  in 
marble.  Descending  to  easier  themes,  sculptors  and 
painters  filled  the  world  with  figures  of  saints  expiring 
under  every  conceivable  variety  of  martyrdom;  and 
with  startling  pictures  of  the  danses  macabres,  illus- 
trating the  terrible  supremacy  of  death.  The  dignity  of 
death  itself  was  degraded.  The  mild  and  pensive  genius 
of  the  inverted  torch,  as  imaged  by  the  Greeks,  gave 
place  to  a  grisly  skeleton,  armed  with  a  scythe,  grin- 
ning in  mockery  and  derision  at  the  terrors  of  his  unwill- 
ing victims. 

In  the  eyes  of  men  there  was  but  one  panacea  for  all 
social  ills.  To  instruct  the  ignorant,  to  reclaim  the 
erring,  to  subdue  all  unworthy  passions,  to  enforce 
obedience,  recourse  must  be  had  to  abject  terror ;  terror, 
the  all-sufficient  philosopher's  stone  that  alone  would 
transmute  all  base  elements  into  gold. 

It  was  equally  inevitable  that  the  laws  should  be 
colored  by  the  same  influences. 


212  Addresses 

The  laws  must  always  reflect  the  chief  characteristics 
of  the  people  among  whom  they  originate,  or  of  the 
rulers  by  whom  they  are  imposed.  Accordingly,  we  find 
that  the  laws  prevailing  in  Europe  up  to  the  middle 
of  the  eighteenth  century  abounded  in  provisions  of  the 
most  extreme  cruelty. 

Sir  William  Blackstone  published  the  first  volume  of 
his  Commentaries  in  1765;  and  in  that  work  he  tells 
us  that  there  were  then  in  England  one  hundred  and 
sixty  offenses  made  punishable  with  death  by  various 
acts  of  Parliament.  It  was  a  capital  offense  to  steal 
anything  of  the  value  of  a  shilling;  and  many  minor 
offenses  were  punished  with  equal  severity.  On  the 
continent  the  average  of  capital  offenses  seems  to  have 
been  something  over  300;  but  what  was  perhaps  worse 
was  that  generally  no  fixed  penalties  were  prescribed; 
the  matter  of  punishment  being  left  to  the  judges,  on 
the  theory  that  the  degree  of  guilt  depended  on  the 
motive  with  which  it  was  committed,  and  not  on  the 
harm  inflicted  on  society ;  hence  that  punishments  could 
not  be  classified.  The  judges  usually  availed  themselves 
of  this  wide  latitude  to  resolve  all  doubt  in  favor  of  the 
State;  and  to  impose  heavy  punishments  according  to 
the  most  approved  ancient  precedents.  They  were  not 
really  judges  as  we  understand  the  word.  It  was  then 
thought  that  the  judiciary  was  merely  a  branch  of  the 
executive  department.  The  judges  were  the  principal 
prosecutors  of  all  accused  persons  brought  before  them ; 
and  after  prosecuting  them  with  extreme  zeal  the  judges 
proceeded  to  pass  on  their  fate,  without  changing,  as 
they  supposed,  their  attitude  in  the  least.  On  the  conti- 
nent of  Europe  this  system  still  prevails ;  and  it  is  only 
in  England  and  America  that  the  rule  obtains  that  an 
accused  person  shall  not  be  bound  to  criminate  him- 
self. On  the  continent  the  judge  still  uses  all  of  his 
skill  to  extort  a  confession,  or  to  lead  the  accused  into 


Beccaria  and  Law  Reform  213 

inconsistent  statements  which  may  tend  to  like  results. 
This  is  what  Bentham  called  the  inquisitorial  method  as 
opposed  to  what  he  called  the  litigious  method  used  in 
England. 

Judicial  torture  was  not  abolished  in  England  until 
the  reign  of  George  IV. ;  but  public  sentiment  even  in 
the  time  of  James  I.  was  largely  opposed  to  it  as  being  in 
violation  of  the  Magna  Charta;  and  it  fell  into  disuse 
in  the  reign  of  Queen  Anne.  But  all  over  the  conti- 
nent, except  in  Sweden,  where  it  had  been  abolished, 
torture  formed  a  regular  part  of  nearly  every  trial  for 
aggravated  offenses  until  the  latter  years  of  the 
eighteenth  century;  and  a  considerable  portion  of  the 
time  of  the  judges  was  necessarily  spent  in  the  torture 
chambers,  writing  down  the  utterances  of  men  and 
women  in  a  state  of  delirium  resulting  from  the  inflic- 
tion of  the  last  drop  of  agony  that  human  ingenuity 
could  extract.  A  physician  was  always  present  to  indi- 
cate when  dissolution  was  so  imminent  that  there  should 
be  a  temporary  suspension  of  proceedings ;  but  in  spite 
of  this  wise  precaution,  kindly  death  frequently  put  an 
end  to  the  exercises. 

Nothing  more  horrible  than  one  of  these  torture  cham- 
bers can  be  conceived;  and  yet  they  were  formerly  con- 
sidered as  absolutely  essential  to  the  stability  of  social 
and  religious  institutions.  The  mere  sight  of  one,  though 
long  disused,  inspired  a  modern  poet  to  write  one  of 
the  noblest  sonnets  in  our  language. 

There  were  two  kinds  of  torture,  the  preliminary  and 
the  supplemental.  The  first  was  used  before  conviction 
to  compel  the  prisoner  to  confess  the  offense  with  which 
he  was  charged,  while  the  second  was  employed  after 
conviction  to  extort  from  him  the  names  of  his 
accomplices. 

In  France,  after  the  publication  of  Beccaria 's  book, 
preliminary  torture  was  abolished  by  Louis  XVI. ;  and 


214  Addresses 

supplemental  torture  was  afterwards  abolished  during 
the  Revolution. 

If  by  means  of  the  preliminary  torture  anything  like 
a  confession  could  be  obtained,  the  labor  of  the  judges 
was  at  an  end;  though  it  was  well  known  that  in  many 
instances  prisoners  subjected  to  prolonged  and  extreme 
torture  had  confessed  to  crimes  that  they  had  never  com- 
mitted. Yet  as  the  rack  and  the  thumb  screw  had  been 
recommended  for  ages  as  the  most  satisfactory  test  of 
guilt,  the  courts  regarded  confessions  made  voluntarily 
as  being  of  but  little  value  unless  repeated  by  the  pris- 
oner when  suffering  under  the  most  intense  agony  that 
the  utmost  refinement  of  art  could  devise. 

Peter  the  Great  does  not  seem  to  have  possessed  much 
originality;  but  his  imitative  faculties  were  well-nigh 
unparalleled.  When  he  visited  France  in  1713,  being 
desirous  of  transplanting  into  his  own  country  all  of  the 
appliances  of  civilization,  he  spent  much  of  his  time  in 
the  torture  chambers  in  order  to  learn  the  various 
instruments  used,  and  the  most  skillful  manner  of  apply- 
ing them  so  as  to  achieve  the  best  results.  Acquiring 
a  complete  outfit  of  such  implements,  he  carried  them 
home  with  him,  and  used  them  as  models  for  the  fabri- 
cation of  many  of  like  kinds. 

The  unit  of  Peter's  system  was  a  doubina,  or  big 
stick,  which  he  laid  on  the  shoulders  of  his  familiars 
with  a  degree  of  prodigality  and  impartiality  that 
showed  that  he  possessed  a  soul  that  rose  above  all  dis- 
tinctions of  rank,  age,  or  sex.  But  he  soon  established 
torture  chambers  that  for  perfection  of  equipment  quite 
equalled  those  of  more  highly  civilized  communities. 
We  read  that  he  established  fourteen  torture  chambers 
in  a  single  village.  Bound  by  no  vulgar  prejudices  to 
one  dull  routine,  he  revelled  in  variety.  Women,  after 
torment,  he  buried  alive,  because  he  found  that  this 
method  of  punishment  struck  most  terror  to  the  female 


Beccaria  and  Law  Reform  215 

soul.  It  is  curious  to  note  that  in  his  gentler  moments 
he  returned  to  ancestral  methods,  and  cut  off  the  heads 
of  his  victims  with  his  own  hands ;  an  exercise  in  which 
he  displayed  unusual  dexterity.  By  prolonged  and 
excessive  torture  he  put  his  own  son  to  death. 

Under  the  practice  prevalent  when  Beccaria  wrote, 
if  the  prisoner  could  not  be  forced  to  confess,  witnesses 
were  adduced.  Hearsay  evidence  was  admissible ;  and  if 
two  rumors  affecting  the  prisoner's  supposed  offense,  or 
tending  to  prove  any  immoral  act  committed  at  any 
time  during  his  whole  life,  could  be  traced  to  two  differ- 
ent sources,  they  were  equivalent  to  the  testimony  of  one 
eyewitness.  Nothing  was  more  common  when  one  was 
on  trial  for  his  life,  say  for  stealing,  than  for  the  prose- 
cution to  introduce  evidence  by  common  rumor,  or  other- 
wise, that  when  a  boy  he  had  thrown  stones  at  his  grand- 
mother, or  that  at  other  times  he  had  shown  an  evil 
disposition.  Of  course,  no  one  could  be  prepared  to  dis- 
prove all  the  charges,  covering  a  whole  lifetime,  that 
idle  gossip  or  malice  might  have  suggested.  And  then 
there  was  a  hideous  maxim  that  had  drifted  down  from 
the  Middle  Ages  to  the  effect  that  where  the  crime 
charged  was  particularly  atrocious,  convictions  might 
be  had  on  slight  evidence,  or  on  mere  suspicion. 

It  will  be  seen  that  under  these  forlorn  conditions 
there  was  but  small  hope  for  the  prisoner ;  and  that  an 
inquisitorial  trial  was  very  much  like  the  ancient  trial 
by  ordeal,  by  which,  if  the  accused  person  walked  bare- 
footed over  red  hot  plowshares  without  burning  his  feet, 
he  was  to  stand  acquitted,  otherwise  he  should  be  con- 
demned. 

The  fact  is  that  but  few  that  were  charged  with 
offenses  escaped  from  the  clutches  of  the  trial  courts 
unless  through  the  favor  of  some  one  in  power. 

It  is  known  that  very  many  innocent  persons  were 
put  to  death  under  these  forms;  such  results  being  the 


216  Addresses 

more  common  because  all  trials  were  conducted  in  secret, 
and  the  accused  was  denied  the  benefit  of  counsel. 

We  can  judge  of  the  fallibility  of  these  proceedings 
by  the  numerous  trials  for  witchcraft,  a  crime  supposed 
to  consist  of  personal  interviews  with  the  devil,  resulting 
in  a  promise  by  the  witch  to  serve  him  faithfully,  in 
return  for  which  she  received  a  gift  of  supernatural 
powers.  There  were  such  things  as  wizards;  but  this 
offense  was  thought  to  be  confined  mostly  to  women. 
Now  we  know  as  well  as  we  know  anything  that  this 
supposed  crime  was  in  its  very  nature  impossible ;  hence 
that  all  those  that  were  convicted  of  it  were  innocent  of 
the  offense  with  which  they  were  charged. 

While  witches  were  being  hanged  in  Massachusetts 
they  were  being  burned  in  England  and  Scotland;  but 
the  European  continent  was  much  more  infested  with 
them  than  England  or  America. 

Michelet  tells  us  that  7,000  witches  and  wizards  were 
burnt  at  Treves ;  that  at  Geneva  500  were  burnt  in  three 
months,  800  at  Wurzburg,  and  1,500  almost  at  once  in 
Bamberg;  and  that  among  these  were  girls  not  more 
than  eleven  years  old.  In  Toulouse  and  several  cities 
of  Spain  the  number  was  still  greater.  So  desolating 
were  these  prosecutions  that  the  Emperor  Ferdinand  II. 
of  Germany,  who  might  have  disputed  the  prize  of  cru- 
elty with  Nero  and  Caligula,  felt  bound  to  interpose 
some  slight  restraint,  saying  that  as  things  were  going 
on  his  dominions  would  soon  be  depopulated. 

The  delusion  was  worse  than  a  pestilence.  In  Lor- 
raine one  judge,  named  Remy,  sent  more  than  800 
witches  and  wizards  to  the  stake.  He  boasted  that  his 
judgment  in  such  matters  was  so  unerring  that  it  often 
happened  that  persons  who  were  arrested  practically 
confessed  their  guilt  by  committing  suicide.  Though 
the  offense  of  witchcraft  was  purely  imaginary,  yet 
the  trials  did  not  at  that  time  differ  from  other  trials; 


Beccaria  and  Law  Reform  217 

and  the  same   quantum  of  evidence  was  required   to 
justify  a  conviction. 

Judgeships  were  put  up  and  sold  to  the  highest  bid- 
der ;  and  judges  were  notoriously  unfit  for  their  places. 
Early  in  the  reign  of  Louis  XIV.,  the  Minister  Colbert, 
wishing  to  select  from  the  various  parliaments  judges 
to  form  a  special  tribunal  for  the  trial  of  Fouquet, 
wrote  to  the  various  prefects  for  their  opinions  of  the 
judges  within  their  department.  The  reports  which  he 
received  represented  them  as  being  almost  universally 
ignorant,  drunkards,  debauchees,  and  generally  worth- 
less. These  reports  are  still  preserved  in  the  French 
archives.  They  hand  down  the  names  of  the  judges 
to  an  immortality  far  worse  than  oblivion.  The  reports 
are  no  doubt  true;  but  caricature  could  hardly  have 
done  worse. 

The  victims  of  the  law  that  I  have  mentioned  are 
only  a  very  few  out  of  the  many  thousands  that  suffered 
in  the  same  way,  equally  innocent. 

Besides  these  secret  trials  there  were  other  ways  of 
disposing  of  obnoxious  persons.  One  of  these  was  by 
the  issue  of  what  were  called  in  France  lettres  de  cachet, 
by  which,  without  any  formulated  charge,  the  victim 
was  consigned  to  prison  during  the  pleasure  of  the  king ; 
and  the  king's  pleasure  often  lasted  for  many  years,  or 
for  the  life  of  the  prisoner.  In  the  reign  of  Louis  XV. 
a  man  was  found  in  the  bastile  who  had  been  confined 
there  for  thirty-five  years.  He  had  never  known  why 
he  had  been  imprisoned;  and  no  one  else  knew.  Under 
the  circumstances  it  was  thought  best  to  discharge  him ; 
but  when  he  had  taken  a  look  at  the  outside  world,  he 
begged  that  he  might  be  allowed  to  return  to  his  familiar 
cell;  and  his  request  was  granted. 

For  very  petty  offenses,  many  of  them  not  now  con- 
demned by  law,  there  were  various  punishments,  many 
of  which  were  more  to  be  dreaded  than  death.     Thou- 


218  Addresses 

sands  of  convicts  were  annually  sent  to  the  galleys, 
where,  during  working  hours,  except  in  very  inclement 
weather,  they  were  chained  to  the  shuddering  oar  with- 
out any  vestige  of  clothing.  Their  food  was  poor  and 
insufficient.  The  result  was  that  the  death  rate  was 
something  frightful;  and  the  exceptionally  strong  who 
survived  the  ordeal  were  frequently  kept  in  chains  for 
ten  to  fifteen  years  after  their  terms  had  expired. 

I  need  not  notice  the  foul  and  overcrowded  prisons  for 
debtors  that  abounded  everywhere. 

The  terrible  punishments  denounced  by  law  had  the 
effect  to  defeat  the  ends  which  the  law  was  intended 
to  accomplish.  If  one  had  committed  some  slight  offense 
punishable  with  death  he  had  nothing  left  but  to  join 
some  troop  of  brigands  in  which  he  would  take  his 
chances  in  a  permanent  war  on  society.  Thus  it  was 
that  crime  constantly  increased,  though  bodies  of  sup- 
posed malefactors  were  always  swinging  on  the  gallows 
as  a  warning  to  evildoers.  To  meet  the  rising  tide  of 
crime,  death  was  clothed  with  additional  terrors,  and 
convicts  were  burnt  at  the  stake,  broken  on  the  wheel, 
or  hung,  drawn  and  quartered,  having  been  previously 
whipped  from  the  jail  to  the  gibbet.  In  France  and 
various  other  countries  the  tongue  of  the  convict  in 
certain  cases  was  cut  out  before  he  headed  the  procession 
to  the  gallows.  But  nothing  did  any  good;  crimes  con- 
tinued to  increase,  and  the  hangman  was  everywhere 
busy. 

I  have  perhaps  said  enough  to  show  the  wretched  con- 
dition of  the  criminal  laws  throughout  Europe  up  to 
the  last  half  of  the  eighteenth  century.  Owing  to  the 
greater  amount  of  liberty  enjoyed  in  England,  and  the 
institution  of  trial  by  jury,  the  laws  were  generally, 
but  not  always,  enforced  with  considerable  impartiality  ; 
but  not  so  on  the  continent;  the  rich  and  powerful 
despised  them,  and  treated  them  with  ill-concealed  con- 


Beccaria  and  Law  Reform  219 

tempt,  while  the  law  operated  on  the  poor  and  the  weak, 
and  often  on  the  innocent,  with  the  utmost  severity. 

Cesar  Bonesano,  Marquis  of  Beccaria,  the  son  of  a 
noble  but  impoverished  family,  was  born  at  Milan  in 
1735.  Soon  after  attaining  his  majority  he  published 
a  work  on  the  subject  of  the  debased  condition  of  the 
Italian  coins  that  attracted  general  attention  in  his 
native  country. 

In  1764,  he  had,  at  the  age  of  twenty-nine,  completed 
his  celebrated  book  on  "Crimes  and  Punishments." 
Having  shown  it  to  some  of  his  friends,  they  advised 
him  not  to  publish  it,  because  it  contained  sentiments 
that  might  bring  him  into  collision  with  the  government, 
and  might  subject  him  to  the  punishments  denounced 
by  the  inquisition,  which  was  then  unshorn  of  its 
powers.  Beccaria  himself  had  very  serious  misgivings 
on  the  subject ;  but  Count  Veri,  his  most  intimate  friend, 
urged  on  him  that  the  work  should  be  published  from 
a  sacred  sense  of  duty.  Accordingly,  it  came  out  in  the 
year  last  mentioned.  Its  success  was  instantaneous,  and 
almost  unparalleled.  It  went  through  three  editions  in 
the  course  of  a  few  months,  and  in  a  short  time  was 
translated  into  all  the  languages  of  Europe,  including 
modern  Greek,  a  language  then  almost  unknown,  Greece 
being  at  that  time  an  obscure  province  of  Turkey. 
Catherine  II.  of  Russia  was  so  much  pleased  with  it  that 
she  caused  it  to  be  printed  as  a  part  of  her  code. 

Nevertheless  there  were  not  a  few  in  Italy  that 
asserted  that  the  author  had  expressed  seditious  senti- 
ments for  which  he  ought  to  be  dealt  with  promptly  and 
severely,  as  a  punishment  for  the  offense,  and  as  a  warn- 
ing to  all  evil  disposed  persons  in  like  case.  From  this 
unpleasant  contingency  Beccaria  was  saved  by  Firmiani, 
who  was  then  the  Austrian  governor  of  the  Milanese,  and 
who  seems  to  have  been  a  man  of  intelligence  and  worth. 

The  book  made  a  great  stir  everywhere ;  but  more  espe- 


220  Addresses 

cially  in  Paris,  which  was  then  the  center  of  literary 
culture.  But  before  speaking  of  its  critics  I  will  notice 
the  work  itself.  It  forms  only  a  small  volume  that  any- 
one can  read  through  easily  in  two  or  three  hours. 
Most  of  its  propositions  seem  today  to  be  no  more  than 
truisms;  but  they  were  startling  enough  when  first 
brought  to  light. 

In  his  introduction,  the  author  says:  "In  defending 
the  rights  of  humanity  and  of  eternal  truth,  if  I  might 
aid  in  saving  from  death  some  of  the  trembling  victims 
of  tyranny,  or  of  ignorance,  which  is  equally  fatal,  the 
benedictions  and  tears  of  a  single  innocent  person 
restored  to  joy  and  liberty  would  console  me  for  the 
contempt  of  the  rest  of  mankind. ' ' 

He  began  his  treatise  by  saying  that  the  advantages 
of  society  should  be  equally  distributed  among  all  of 
its  members;  a  sentiment  which  he  repeats  in  a  form 
which  has  now  become  an  aphorism:  "The  object  of 
government  should  be  the  greatest  possible  good  to  the 
greatest  number." 

The  following  is  submitted  as  a  brief  summary  of  the 
reformation   that  Beccaria  recommended. 

The  laws  (generally  written  in  Latin  at  that  time) 
should  be  written  in  the  vulgar  tongue,  so  that  they 
may  easily  be  understood  by  the  people.  Every  offense 
should  be  rigidly  denned;  and  a  punishment  strictly 
proportioned  to  its  magnitude  should  be  prescribed  with 
the  greatest  precision  possible,  so  that  the  least  possible 
discretion  should  be  left  to  the  judge. 

The  efficiency  of  punishment  depends  more  on  its 
certainty  than  on  its  severity.  If  laws  are  well  defined 
and  properly  executed  each  citizen  will  know  the  conse- 
quence of  a  criminal  act;  and  the  innocent  will  feel 
secure  in  the  enjoyment  of  life,  liberty,  and  property. 
The  press  should  be  free,  so  that  men  may  have  the 
benefit  of  free  discussion,  and  be  able  to  form  reasonable 


Beccaria  and  Law  Reform  221 

and  correct  opinions.  (It  is  perhaps  needless  to  say 
that  at  that  time  the  press  everywhere,  save  in  Eng- 
land, was  under  a  strict  censorship.) 

Judges  should  be  assisted  by  laymen  chosen  by  lot  in 
all  criminal  trials.  All  trials  should  be  public.  Women 
should  be  allowed  to  testify  as  witnesses  the  same  as 
men.  (They  were  generally  excluded  from  the  witness 
stand  in  Italy  at  that  time.)  Defects  of  moral  character 
should  not  exclude  a  witness ;  but  should  only  go  to  his 
credibility. 

To  justify  conviction  the  evidence  should  be  free  from 
doubt;  more  especially  where  the  offense  charged  con- 
sists wholly  or  in  part  of  spoken  words;  such  words 
being  often  wrongly  reported,  while  their  meaning 
depends  largely  on  tones  and  gestures  that  cannot  be 
reproduced  in  the  court  room. 

No  one  should  be  bound  to  criminate  himself.  Tor- 
ture, which  condemns  the  feeble  and  exonerates  the 
robust,  should  be  abolished. 

Capital  punishment  should  be  superseded  by  impris- 
onment at  hard  labor  for  periods  proportioned  to  the 
offense.  No  punishment  should  exceed  what  is  needful 
to  deter  men  from  crime.  Confiscation  of  property 
(then  almost  universal  in  cases  of  conviction)  should 
be  abolished,  because  it  inflicts  punishment  on  the  inno- 
cent family  of  the  offender.  The  time  of  imprisonment 
before  trial  should  be  as  short  as  may  be  compatible 
with  a  full  and  fair  trial.  If  the  accused  is  guilty, 
promptness  of  punishment  renders  the  law  more  effi- 
cient; if  innocent,  he  should  be  restored  to  liberty  at 
the  earliest  possible  moment. 

Offers  of  rewards  for  accused  persons,  dead  or  alive 
(then  very  common)  should  be  forbidden.  Duelling 
should  be  prohibited;  and  it  should  be  shown  that  the 
law  is  the  arbiter  of  disputes.  Smuggling  (then  punish- 
able with  death)  should  not  be  punished  capitally.    The 


222  Addresses 

government  could  lessen  the  violations  of  the  law  in  this 
respect  by  lowering  the  duties. 

Towns  and  cities  should  be  lighted  at  the  public 
expense;  as  crime  would  thereby  be  much  diminished. 

Punishment  of  suicide  (then  inflicted  by  burial  of 
the  body  of  the  offender  with  a  stake  driven  through  it 
at  midnight  at  a  cross  roads,  and  by  confiscation  of 
property)  should  be  abolished,  as  it  only  falls  on  the 
innocent.  Laws  against  emigration  should  be  repealed, 
as  being  an  unreasonable  restraint  on  personal  liberty. 

The  law  should  never  undertake  to  control  men's 
opinions,  or  to  punish  criminally  mere  breaches  of 
morals.  "To  attempt,"  said  the  author,  "to  subject  a 
multitude  of  intelligent  beings  to  the  invariable  regu- 
larity of  inanimate  machinery,  is  to  indulge  in  a  false 
notion  of  utility. ' '  Liberty  and  law  should  march  hand 
in  hand. 

No  confession  should  be  admitted  in  evidence  unless 
voluntarily  made.  Judges  should  not  act  as  prosecutors ; 
but  should  be  impartial  between  the  State  and  the 
defendant.  The  law  should  disregard  all  distinctions 
of  rank  and  station. 

The  author  closed  with  these  words: 

"If  punishment  is  not  to  be  a  mere  act  of  violence 
on  the  part  of  one  person  or  more,  it  should  be  public, 
prompt,  necessary,  as  mild  as  possible,  proportioned  to 
the  offense,  and  fixed  by  the  laws." 

Such  is  the  substance  of  this  little  book  which  was 
written  in  a  modest  style  that  did  not  invite  contro- 
versy. The  author  prudently  avoided  comparisons,  or 
criticisms  of  existing  institutions.  He  only  said:  "Such 
is  the  sad  condition  of  the  human  mind  that  we  have 
a  better  knowledge  of  the  revolutions  of  the  heavenly 
bodies  than  of  moral  truths  that  lie  very  near  us,  and 
which  are  intimately  connected  with  our  happiness. 
Truths  that  concern  us  most  are  uncertain,  encircled 


Beccaria  and  Law  Reform  223 

with  darkness,  and  adrift  on  the  whirlpool  of  our 
passions." 

The  book  was  certainly  received  with  general  favor; 
but  not  with  universal  approval.  It  was  promptly  con- 
demned by  the  inquisition  in  Venice. 

A  monk  named  Corfri,  living  in  a  monastery  in  Val- 
lombrosa,  published  a  book  in  which  he  hurled  at  Bec- 
caria all  the  anathemas  that  had  accumulated  in  the 
arsenals  of  theological  controversy  for  centuries.  He 
said  that  Beccaria  had  distilled  a  gall  of  unexampled 
bitterness ;  that  to  shameful  contradictions  he  had  added 
secret  and  perfidious  traits  of  hypocrisy;  that  his  book 
was  horrible,  venomous,  licentious,  impious,  infamous, 
filled  with  impudent  blasphemies,  insolent  ironies, 
indecent  pleasantries,  dangerous  subtleties,  scandalous 
railleries,  and  outrageous  slanders. 

This  good  monk  had  no  doubt  of  the  punishment  that 
Beccaria  deserved,  or  of  the  final  destruction  by  which 
he  would  be  overtaken.  On  these  subjects  his  notions 
had  all  of  that  definiteness  that  Beccaria  desired  that 
the  laws  should  assume. 

At  that  time  Linguet  and  Brissot,  one  of  the  future 
leaders  of  the  Girondists,  were  writing  on  different  news- 
papers in  Paris.  They  had  formerly  been  on  the  staff 
of  Freron,  the  well  known  editor  of  a  Parisian  period- 
ical, where  they  had  quarreled  bitterly;  a  quarrel  that 
was  definitely  ended  when  they  were  both  guillotined 
during  the  reign  of  terror. 

Linguet,  who  was  an  obscurant  of  the  most  pro- 
nounced type,  wrote  a  review  in  which  he  denounced 
Beccaria 's  book  with  the  utmost  vehemence,  and  in  which 
he  told  various  lies  about  the  author.  Brissot  wrote  a 
review  in  which  he  highly  eulogized  the  work  on 
"Crimes  and  Punishments,"  concluding  by  saying  that 
the  author  had  secured  an  additional  triumph  by  reason 
of  the  censure  of  Linguet. 


224  Addresses 

Perhaps  the  most  extraordinary  production  called 
forth  was  from  one  Vouglans,  who  had  formerly  been 
one  of  the  judges  of  the  Parliament  Maupeou.  He  and 
his  fellows  having  been  turned  out  to  grass  by  Louis 
XVI.,  he  found  time  to  write  two  folio  volumes  in 
denunciation  of  Beccaria;  in  which  he  urged  that  the 
reason  there  was  so  much  crime  was  that  the  laws  were 
not  severe  enough,  and  that  many  crimes  were  not  made 
punishable  by  law  at  all. 

The  work  on  ' '  Crimes  and  Punishments ' '  undoubtedly 
hastened  the  step  of  the  French  Revolution.  It  was  the 
textbook  of  its  principal  leaders.  By  sending  a  search- 
ing ray  of  light  into  the  dark  recesses  of  the  criminal 
law  it  showed  the  folly  and  injustice  of  most  of  the 
existing  institutions;  and  excited  in  France  a  spirit  of 
general  revolt. 

The  Revolution  began  very  well.  One  of  the  first 
things  to  which  the  Constituent  Assembly  turned  its 
attention  was  the  preparation  of  a  criminal  code  based 
on  the  suggestions  of  Beccaria.  The  result  was  a  code 
which  is  hardly  open  to  intelligent  criticism;  and,  with 
but  few  changes,  it  still  remains  in  force. 

When,  under  the  reaction  against  ancient  abuses,  the 
Revolution,  unable  to  steer  between  the  Scylla  of 
tyranny  and  the  Charybdis  of  anarchy,  adopted  the 
methods  that  it  had  denounced,  and  substituted  the 
Revolutionary  Tribunal  in  place  of  the  worst  of  those 
that  had  existed  under  the  old  regime,  such  a  sudden 
lapse  from  high  ideas  must  have  grieved  the  heart  of 
the  Italian  jurist.  We  cannot  doubt  that  he  was  pained 
to  perceive  that  right  triumphs  in  this  world  very  much 
as  wrong  triumphs.  He  could  not  foresee  that  out  of  all 
that  turmoil  would  come,  far  off,  the  unification  and  the 
enfranchisement  of  his  native  land;  objects  that  he 
coveted,  but  for  which  he  dared  not  hope. 

The  victory  of  Beccaria  has  become  complete.     The 


Beccaria  and  Law  Reform  225 

principles  that  he  announced  are  now  embodied  in  every 
criminal  code  in  Christendom ;  and  they  have  even  pene- 
trated the  distant  Orient.  Japan  years  ago  adopted 
a  criminal  code  based  on  his  views. 

During  the  late  war  between  China  and  Japan  the 
Japanese  government  threw  troops  into  Korea,  and  ruled 
the  country  as  long  as  the  war  lasted.  At  the  end  of  the 
war  Japan  showed  that  her  people  were  not  thoroughly 
civilized,  or  at  least  not  deeply  imbued  with  the  spirit 
of  modern  Christianity,  by  freeing  Korea  from  the  Chi- 
nese yoke,  hauling  down  the  Japanese  flag,  withdrawing 
her  troops,  and  leaving  the  Koreans  to  work  out  their 
own  political  salvation. 

Since  that  time  the  king  of  Korea  has  introduced 
various  reforms.  On  the  8th  day  of  January,  1895,  he 
issued  a  proclamation  containing  these  words,  taken 
almost  literally  from  Beccaria: 

"Civil  law  and  criminal  law  must  be  strictly  and 
clearly  laid  down;  none  must  be  imprisoned  or  fined  in 
excess,  so  that  security  of  life  and  property  may  be 
ensured  for  all  alike." 

Beccaria 's  book  had  the  honor  of  being  translated  into 
French  by  the  Abbe  Morellet,  at  the  suggestion  of 
Malesherbes;  and  of  being  annotated  by  Diderot,  who 
was  then  a  great  light  in  the  literary  firmament.  He 
was  a  man  of  ability,  and  of  wonderful  information ; 
but  in  this  instance  he  failed  completely.  He  favored 
the  abolition  of  preliminary  torture,  but  recommended 
that  supplemental  torture  be  perpetuated,  notwithstand- 
ing the  fact  that  long  experience  had  shown  that  crim- 
inals under  torture  were  much  more  likely  to  implicate 
innocent  persons  than  to  denounce  their  friends.  He 
also  had  unbounded  faith  in  the  omnipotence  of  the  law. 
He  said:  "Where  the  laws  are  good,  men  are  good ;  and 
where  the  laws  are  bad,  men  are  bad;"  thus  mistaking 
the  effect  for  the  cause. 


226  Addresses 

Voltaire  published  a  pamphlet  anonymously,  in  which 
he  defended  the  theories  of  Beccaria,  and  enforced  them 
by  various  historical  references. 

It  is  not  surprising  that  a  revolution  so  extensive  as 
that  contemplated  by  Beccaria  should  have  met  with 
opposition.  Errors — particularly  if  they  are  of  long 
standing — die  hard.  Outside  of  poetry  they  rarely  die 
at  all;  but  are  continually  made  to  assume  new  forms, 
and  are  reissued.  Hence  life  is  what  it  has  always  been, 
a  combat. 

Cicero  approved  of  the  gladiatorial  shows  because,  he 
said,  they  taught  men  how  to  die ;  and  Pliny  the  younger, 
perhaps  the  most  refined  man  of  antiquity,  thought  that 
they  should  be  encouraged. 

In  our  own  times  we  have  many  brutal  exhibitions, 
which  are  faithfully  reported  by  the  press ;  and  the  law 
has  to  require  that  public  executions  shall  take  place 
within  closed  walls  in  order  to  prevent  them  from  degen- 
erating into  popular  spectacles. 

Sir  Matthew  Hale,  a  very  learned  man,  said  that  any 
man  who  denied  witchcraft  was  an  atheist.  He  proved 
his  faith  by  causing  two  old  women  to  be  burned  for 
that  offense.  Blackstone  published  the  fourth  volume  of 
his  Commentaries  in  1769.  He  had  read  the  treatise  of 
Beccaria;  and  it  had  evidently  modified  his  high  tory 
and  reactionary  views  to  some  slight  extent,  as  is  shown 
in  his  last  chapter;  but  he  believed  in  witchcraft  as 
devoutly  as  any  Senegambian  now  living.  Speaking  of 
witchcraft,  he  said:  " — The  thing  itself  is  a  truth  to 
which  every  nation  in  the  world  hath  in  turn  borne 
testimony,  either  by  examples  seemingly  well  attested, 
or  by  prohibitory  laws;  which  at  least  suppose  the  pos- 
sibility of  commerce  with  evil  spirits." 

Some  years  ago  a  distinguished  jurist  published  an 
article  to  prove  that  war  is  the  nurse  of  all  the  nobler 
virtues.    The  nursing  has  been  so  prolonged  and  exten- 


Beccaria  and  Law  Reform  227 

sive  that  probably  many  of  them  have  been  nursed  to 
death.  Not  long  ago  I  read  a  paper  written  by  some 
French  writer  in  which  he  said  that  public  trials  of 
criminals  are  only  schools  of  crime.  Consequently  he 
contended  that  all  such  trials  should  be  in  secret,  as  in 
the  good  old  days. 

When,  in  1899,  the  peace  conference  met  at  The 
Hague  the  two  great  Anglo-Saxon  nations,  claiming  to 
be  in  the  van  of  civilization,  refused  to  give  up  the  dum- 
dum bullets  because  just  at  that  time  they  happened  to 
be  engaged  in  the  spread  of  the  gospel  of  peace  among 
heathen  nations. 

Not  long  ago  I  heard  an  address  which  dealt  with  the 
question  of  friendly  arbitration  of  disputes  between 
nations.  The  orator  gave  a  history  of  such  arbitrations, 
and  presented  a  glowing  picture  of  the  coming  day  when 
spears  shall  be  beaten  into  plowshares,  swords  shall 
be  beaten  into  pruning  hooks,  and  the  white  dove  of 
peace  shall  spread  its  wings  over  landscapes  of  universal 
reconciliation ;  but  he  wound  up  by  telling  us  that  there 
were  a  few  wars  so  divine,  so  holy,  so  preeminently 
sacred,  that  they  commended  themselves  to  the  universal 
conscience  of  mankind;  and  that  chief  among  these, 
consecrated  by  all  of  the  blessings  of  heaven,  was  our 
present  war  on  the  Filipinos.  He  then  proceeded  to 
develop  a  code  of  international  morals,  which,  if  not 
superior  to  the  Sermon  on  the  Mount,  was  at  least 
different  from  it. 

But  notwithstanding  all  objections,  and  some  vitu- 
peration and  abuse,  the  book  of  Beccaria  commended 
itself  to  most  fair-minded  and  intelligent  men. 

His  doctrines  have  not  only  changed  the  whole  system 
of  the  criminal  laws,  but  they  have  stimulated  inquiries 
into  civil  laws  as  well,  and  have  resulted  in  a  new  science 
of  jurisprudence  based  on  reason,  and  not  dominated 
by  ancient  custom,  or  enslaved  by  wornout  precedent. 


228  Addresses 

Bentham,  Romilly,  Pastoret,  and  all  of  the  great  law 
reformers  of  the  present  century,  have  frankly  acknowl- 
edged their  obligations  to  the  pioneer  in  their  wide  field 
of  labor. 

The  rest  of  the  life  of  Beccaria  is  soon  told.  For 
some  years  he  and  some  of  his  friends  published  in  Milan 
a  periodical  called  the  ' '  Coffee  House, ' '  after  the  manner 
of  Addison's  "Spectator."  Not  long  after  the  publica- 
tion of  his  book  on  "Crimes  and  Punishments"  he 
planned  an  extensive  work  on  Legislation ;  but  seeing 
that  such  a  work  would  bring  him  in  conflict  with  those 
who  were  in  power,  he  abandoned  the  enterprise.  He 
was  like  the  mariner,  who,  having  narrowly  escaped 
shipwreck  on  his  first  voyage,  resolves  to  tempt  no  more 
the  stormy  seas.  He  was  happily  married,  and  little 
children  were  growing  up  around  him.  He  said  him- 
self: "I  sought  to  defend  humanity,  without  becoming 
its  martyr." 

Beccaria  was  appointed  professor  of  political  economy 
in  the  Palatine  College  of  Milan  in  1768,  a  position  in 
which  he  maintained  himself  with  distinction.  Two 
volumes  of  his  lectures  have  been  published  since  his 
death.  In  1771  he  was  made  a  member  of  the  supreme 
economic  council;  and  in  1791  he  was  made  a  member 
of  the  board  for  the  revision  of  the  code,  in  which 
capacity  he  rendered  valuable  services.  He  died  of 
apoplexy  at  the  age  of  60,  "lamented,"  as  was  said 
by  a  contemporary  and  a  fellow  countryman,  "by  all 
who  knew  him,  and  worthy  of  being  known  and 
lamented  by  the  whole  human  race." 

His  work  was  done.  He  had  spoken  a  little  word  in 
due  season,  and  it  was  destined  to  live  forever.  In  the 
first  edition  of  his  book  he  had  favored  imprisonment 
for  debt.  In  a  later  one  he  expunged  the  passage,  and 
said :  "I  blush  to  have  written  so  cruel  a  thing.  I  have 
been  accused  of  being  seditious  and  impious  when  I  was 


Beccaria  and  Law  Reform  229 

neither;  but  when  I  attacked  the  sacred  rights  of 
humanity  no  one  raised  his  voice  against  me." 

Beccaria  was  extremely  fortunate  in  the  time  of  the 
publication  of  his  famous  book.  Fifty  years  earlier  it 
would  have  been  fatal  to  its  author ;  fifty  years  later  his 
labors  would  probably  have  been  forestalled.  M.  Dupin, 
one  of  the  most  distinguished  of  the  French  lawyers  of 
this  century,  has  said  of  Beccaria:  "He  was  remarkable 
less  for  the  profundity  of  his  views  than  for  the  gener- 
osity of  his  sentiments ;  his  treatise  is  rather  an  earnest 
plea  for  humanity  than  a  scientific  work ;  and  the  name 
of  Beccaria  will  pass  with  posterity,  not  as  that  of  a 
great  publicist,  but  as  that  of  one  who  deserved  well  of 
the  human  race." 

Immanuel  Kant,  who  was  profound  often  even  to 
obscurity,  reproached  Beccaria  for  leaning  too  much  to 
humanitarianism. 

Beccaria  was  no  doubt  a  humanitarian,  if  that  is  good 
ground  for  censure ;  but  he  was  not  a  sentimentalist,  like 
Rousseau,  who  believed,  or  affected  to  believe,  that  all 
men  would  be  good  and  happy  if  all  laws  were  repealed. 
He  stood  for  reasonable  laws  rigidly  enforced;  and  he 
deprecated  the  injudicious  use  of  the  pardoning  power 
as  tending  to  bring  the  law  into  contempt.  His  book 
may  not  seem  very  profound  as  compared  with  studies 
in  jurisprudence  that  have  since  appeared.  He  labored 
for  practical  results,  and  not  to  show  his  learning.  It 
is  the  old  story  of  Columbus  and  the  egg.  Anyone 
could  stand  the  egg  on  end  after  Columbus  had  shown 
him  how  to  do  it.  If  Beccaria  was  not  a  great  man  he 
accomplished  great  results.  Generations  of  able  jurists 
had  lived  before  him  without  seeing  anything  objec- 
tionable in  the  barbarous  codes  existing  in  their  day. 
Men  are  the  slaves  of  custom,  and  are  apt  to  overlook 
the  faults  and  incongruities  of  institutions  that  have 
always  been  unchallenged,  and  that  have  become  vener- 


230  Addresses 

able  by  reason  of  their  antiquity.  But  Becearia  per- 
ceived the  prime  defects  in  the  governments  and  laws 
of  his  time,  and  pointed  them  out  with  unerring  accu- 
racy, suggesting  reformations  that  have  been  adopted 
in  all  civilized  lands.  There  are  no  doubt  many  cor- 
porals in  our  army  who,  if  furnished  with  modern  appli- 
ances of  warfare,  could  capture  another  Tyre  in  less 
time  than  it  took  Alexander;  but  it  does  not  follow 
that  they  are  greater  than  Alexander.  It  may  be  that 
Becearia  was  not  profound;  but  he  was  a  thoroughly 
sane  man,  with  that  rare  kind  of  common  sense,  pos- 
sessed by  men  like  Washington,  which  easily  adjusts 
itself  to  great  subjects.  As  a  literary  man  he  could 
not  compare  with  his  grandson,  Manzoni,  the  poet,  and 
the  author  of  the  only  classic  novel  that  Italy  has  pro- 
duced; but  the  world  could  better  have  done  without 
"The  Betrothed"  than  to  have  done  without  the  trea- 
tise on  "Crimes  and  Punishments." 

It  does  indeed  seem  not  improbable  that  Becearia 
sought  to  do  good  rather  than  to  acquire  fame.  We 
may  underestimate  his  abilities;  but  it  would  be  hard 
to  overestimate  the  value  of  the  work  which  he 
accomplished. 

If  a  shining  angel  had  appeared  in  his  chamber  at 
night,  and  had  shown  him  a  book  of  gold,  containing 
the  names  of  all  the  great  ones  of  the  earth,  and  had 
told  him  that  his  own  was  not  enrolled  therein,  Becearia 
might  have 

*  *    *    *    spoke  more  low, 
But  cheerly  still;  and  said,  I  pray  thee,  then, 
Write  me  as  one  that  loves  his  fellow-men." 


JUDGE  JOSEPH  W.  MARTIN 

Extract    from    an    Address    Delivered    on    Presenting    to    the 

Supreme  Court  of  Arkansas  the  Resolutions  on  the 

Death  of  Judge  Joseph  W.  Martin 


HON.  JOSEPH  W.  MARTIN: 
MEMORIAL 

At  such  a  time,  when  our  thoughts  revert  to  the  irrev- 
ocable past,  we  are  apt  to  recall  things  that  had  been 
but  dimly  remembered.  Since  the  death  of  Judge  Mar- 
tin I  have  more  than  once  recurred  to  an  important 
trial  that  took  place  in  the  House  of  Lords  in  England 
nearly  three  hundred  years  ago;  a  trial  involving  the 
titles  and  estates  of  the  Earls  of  Oxford,  of  the  great 
house  of  DeVere,  which  had  existed  in  England  for 
five  centuries  in  extraordinary  power  and  splendor;  but 
which,  as  it  was  contended,  had  ceased  for  want  of 
heirs.  The  evidence  was  obscure  and  conflicting,  the 
issue  doubtful.  A  great  judge  of  that  period,  distin- 
guished alike  for  learning,  high  character  and  ability, 
in  delivering  his  opinion  on  that  occasion,  said,  in  words 
that  will  be  long  remembered : 

"I  have  labored  to  make  a  covenant  with  myself  that 
affection  may  not  press  upon  judgment;  for  I  suppose 
there  is  no  man  that  hath  any  apprehension  of  gentry 
or  nobleness  but  his  affection  stands  to  the  continuance 
of  a  house  so  illustrious,  and  would  take  hold  of  a  twig 
or  twine-thread  to  uphold  it.  And  yet  time  hath  his 
revolutions;  there  must  be  a  period  and  an  end  to  all 
temporal  things,  finis  rerum,  an  end  of  honors  and  dig- 
nities, and  whatsoever  is  terrene — and  why  not  of 
DeVere?  For  where  is  Bohun?  Where  is  Mowbray? 
Where  is  Mortimer?  Nay,  which  is  more  and  most  of 
all,  where  is  Plantaganet?  They  are  entombed  in  the 
urns  and  sepulchres  of  mortality.  Yet  let  the  name  of 
DeVere  stand  as  long  as  it  pleaseth  God!" 

And  where  is  the  judge  that  uttered  these  words,  and 
where  the  royal  personages,  statesmen  and  gentlemen 

233 


234  Addresses 

and  ladies  of  high  rank  that  eagerly  listened  to  them? 
They,  too,  sleep  in  the  urns  and  receptacles  of  mortality ; 
and  over  most  of  them  has  settled  the  pall  of  oblivion 
that  shall  outlast  all  monuments. 

These,  and  all  of  the  departed  that  walked  with  us 
but  yesterday,  and  are  seen  with  us  no  more,  were 
spirits,  masked  and  embodied  for  a  time  in  human  form. 
One  whose  inexhaustible  genius  has  not  only  fertilized 
all  the  fields  of  literature  and  art,  but  has  extended  and 
enriched  the  whole  wide  domain  of  thought,  in  what  is 
considered  to  have  .been  probably  the  last  product  of 
his  mighty  pen,  ascending  to  the  highest  heaven  of 
invention,  as  if  in  the  conscious  accents  of  a  magnificent 
and  sad  farewell,  has  said: 

"Our  revels  now  are  ended.    These   our  actors, 
As  I  foretold  you,  were  all  spirits,  and 
Are  melted  into  air,  into  thin  air; 
And,  like  the  baseless  fabric  of  this  vision, 
The  cloud-clapp'd  towers,  the  gorgeous  palaces, 
The  solemn  temples,  the  great  globe  itself, 
Yea,  all  which  it  inherit,  shall  dissolve, 
And,  like  this  insubstantial  pageant  faded, 
Leave  not  a  wrack  behind.    We  are  such  stuff 
As  dreams  are  made  of;  and  our  little  life 
Is  rounded  by  a  sleep." 

The  thought  was  not  a  new  one;  for  expressions  of 
the  want  of  permanency  of  all  things  that  we  see,  and 
of  the  earth  on  which  we  dwell,  are  scattered  through 
ancient  writings,  both  sacred  and  profane;  but  never 
before  had  it  been  conveyed  so  impressively ;  so  impress- 
ively, indeed,  that  a  great  poet  in  a  foreign  land  long 
subsequently  declared  that,  having  first  read  them,  he 
was  never  the  same  man  afterwards. 

Whatever  is  dissolved  is  not  utterly  destroyed;  but 
has  only  undergone  a  temporary  change.  If  we  can 
only  dimly  trace  the  successive  vicissitudes  and  trans- 


Judge  Joseph  W.  Martin  235 

formations  of  our  little  planet  during  the  long  ages 
of  the  past,  its  future  is  enveloped  in  still  deeper  mys- 
tery. But  if  this  small  floating  island,  from  which  we 
look  out  on  the  universe  as  we  pass,  shall  eventually 
perish,  as  scientific  men  predict,  it  will,  as  compared 
with  the  countless  worlds  around  us,  be  but  as  the  dis- 
appearance of  a  grain  of  sand  on  the  seashore. 

Strange  stories  are  told  us  in  these  later  years  as  we 
look  up  at  the  starry  skies.  They  no  longer  speak  to 
us  of  individual  destinies.  It  matters  not  under  what 
star  we  are  born,  under  what  star  we  die.  Science  will 
point  out  to  us  a  single  luminary  in  the  kindling 
heavens,  and  will  tell  us  that  it  is  a  central  sun  so  vast 
that  the  imagination  cannot  grasp  its  dimensions;  and 
that  it,  with  all  its  attendant  retinue  of  worlds, 
inhabited,  as  we  may  trust,  by  beings  wiser  and  better 
and  happier  than  we  are,  is  forever  dropping  headlong 
and  silently  through  illimitable  space  with  the  speed 
of  a  thunderbolt ;  pursuing  a  cycle  so  immeasurably  vast 
that  millions  of  years  may  be  consumed  in  a  single 
revolution;  and  yet  that  it  is  so  infinitely  remote  from 
us  that  from  the  earliest  dawn  of  history  down  to  the 
present  moment,  notwithstanding  the  inconceivable 
space  that  it  has  traversed,  it  has  not  changed  its  appar- 
ent place  in  the  visible  sky.  It  will  tell  us  that  all 
central  suns,  including  our  own,  reckoned  not  by  mil- 
lions, but  by  hundreds  of  millions,  with  their  subordi- 
nate worlds,  are  moving  in  the  same  manner  in  their 
appointed  orbits  that  can  never  be  measured  by  man. 
It  will  tell  us  that  certain  stars  once  noted  and  catalogued 
have  deserted  the  wide  expanse  of  heaven;  while  others 
have  blazed  up  into  gorgeous  splendor  for  a  season,  and 
have  then  disappeared;  that  the  destruction  of  one  of 
these  systems  results  in  a  vast  fire  mist  from  which, 
under  the  operation  of  laws  now  in  force,  there  will  be 
evolved  a  new  heaven  and  a  new  earth;  and  that  this 


236  Addresses 

process,  requiring  the  infinitude  of  ages,  is  now  going 
on  under  the  eyes  of  men.  It  will  tell  us  that  in  the 
wise  economy  of  Nature  matter  and  force,  though  they 
undergo  many  wonderful  transformations,  are  inde- 
structible; and  that,  if  language  were  framed  on  a 
strictly  scientific  basis,  the  word  annihilation  would  be 
unknown,  since  the  thing  thus  denoted  has  never  existed 
and  cannot  exist.  If  these  things,  confirmed  in  every 
branch  of  science,  are  true,  they  demonstrate  that  all 
the  processes  of  Nature  tend  to  perpetuity,  and  not  to 
decay  and  death ;  and  as  we  know  that  in  our  own  world 
the  advance  of  development  has  always  been  on  the 
ascending  scale  from  the  lowest  to  the  highest  forms, 
we  have  reason  to  suppose  that  such  will  be  the  case  in 
future  throughout  the  universe;  and  that  every  succes- 
sive creation  will  be  more  grand  and  beautiful  than 
those  that  went  before. 

Science,  which  has  rectified  many  errors,  and  has  dis- 
pelled many  illusions,  has  furnished  new  conceptions 
of  permanence  and  duration  amidst  constantly  chang- 
ing conditions,  thus  contributing  a  powerful  support  to 
the  oldest  and  most  universal  of  human  beliefs,  that  of 
the  immortality  of  man,  which  lies  at  the  foundation  of 
law  and  order,  without  which  science  could  never  have 
the  opportunity  or  the  leisure  to  disperse  the  thick  cloud 
of  ignorance  that  long  weighed  upon  human  progress. 
That  this  solemn  and  abiding  conviction  is  deeply 
stamped  on  the  hearts  of  men  for  a  benevolent  purpose, 
we  cannot  doubt,  since  in  all  ages  and  in  all  lands  it 
has  afforded  consolation  to  thousands  of  sorrowing  souls 
to  whom  all  other  hope  was  denied,  has  repressed  many 
a  guilty  thought,  and  has  so  far  influenced  even  the 
most  depraved  of  men  that  they  are  sometimes  over- 
awed by  the  imperishable  conviction  of  our  race. 

I  know  that  there  have  been  of  late  years  a  very 
few  men   endowed  with   eminent   talents  that   tell   us 


Judge  Joseph  W.  Martin  237 

that  we  should  form  no  opinion  of  what  may  happen 
after  death,  because  such  conclusions  cannot  be  based 
on  the  experience  of  living  men;  but  their  lives  belie 
their  creed;  because  in  all  conjectures  they,  like  our- 
selves, habitually  act  on  probabilities  that  are  far  from 
convincing ;  and  because  their  very  negation  implies  that 
they  must  sometimes  indulge  in  reflections  that  tran- 
scend the  multiplication  table  or  the  exact  demonstra- 
tions of  science;  and  that  at  times  they  must  harbor 
"the  thoughts  that  wander  through  eternity."  The 
greater  part  of  our  knowledge  is  not  based  on  exact 
demonstration,  but  on  intuitions  and  inferences.  If 
these  should  be  withdrawn,  the  atmosphere  of  our  lives 
would  be  so  sterilized  that  its  vivifying  properties  would 
be  gone;  and  the  proposition  thus  set  forth,  requiring 
us  to  think  only  in  demonstrations,  would  put  an  end 
to  scientific  investigation  itself,  since  it  forbids  us  to 
consider  theories  as  yet  unverified  by  evidence  equivalent 
to  mathematical  certainty ;  thus  denying  the  very  process 
by  which  science  has  made  its  conquests  at  every  stage 
of  its  progress. 

I  do  not  believe  that  the  influence  of  a  good  man  can 
ever  perish.  Largely  derived  from  other  sources,  it  will 
in  its  turn  be  transmitted,  and  will  linger  on  when  he 
is  gone. 

We  cannot  think  of  our  departed  friends  as  mere 
physical  wrecks  on  the  desolate  shores  of  Time.  If  we 
should  adopt  that  grossly  materialistic  conception  of 
death,  and  should  continue  to  cherish  their  memory,  and 
to  erect  statues  and  monuments  in  their  honor,  we  should 
only  act  in  obedience  to  that  fetishism  that  is  practiced 
by  the  lowest  savage  tribes,  whose  faculties  scarcely  rise 
above  the  level  of  those  of  the  brute  creation,  and  should 
perceive  behind  all  the  beneficient  designs  of  Providence 
nothing  but  the  gloomy  and  revolting  picture  of  Saturn 
forever  engaged  in  devouring  his  own  children. 


JOHN  MARSHALL 


Address   on   John   Marshall   Day — The   One   Hundredth   Anni- 
versary of  his  Appointment  as  Chief  Justice  of  the 
United  States  Supreme  Court 


JOHN  MARSHALL 

I  am  not  here  to  pronounce  a  eulogy  on  John  Marshall ; 
but  the  language  that  would  express  the  most  sober  and 
discriminating  estimate  of  his  character  might  easily 
be  mistaken  for  eulogy.  There  is  not  a  man  living  that 
could  add  anything  to  his  fame,  or  that  could  pluck  a 
single  leaf  from  the  chaplet  of  laurel  with  which  he  was 
crowned  by  public  acclamation  long  ago.  Though 
younger  in  years,  he  was  contemporaneous  with  that 
remarkable  galaxy  of  men  that  sat  around  the  cradle  of 
American  liberty;  men  such  as  Washington,  Hamilton, 
Franklin,  Madison,  Jefferson,  and  a  score  of  others  that 
might  be  mentioned,  all  men  of  extraordinary  ability, 
all  animated  by  the  same  devotion  to  the  cause  of  their 
country,  which  was  at  the  same  time  the  cause-  of  human- 
ity. Never  since  the  age  of  Pericles  had  a  country  so 
small  in  population  produced  so  many  men  in  the  same 
generation  of  such  splendid  endowments.  Born  with  a 
keen  thirst  for  knowledge,  and  impelled  by  an  ardent 
emulation  to  profit  by  their  illustrious  example,  John 
Marshall  had  the  advantage  of  knowing  personally  in 
their  declining  years  all  of  these  great  fathers  of  the 
Republic,  of  observing  their  lives,  and  storing  in  his 
memory  words  of  wisdom  which  in  after  days  served 
him  for  guidance  and  for  inspiration ;  so  that  his  whole 
life  became  a  sort  of  continuation  of  their  traditions 
and  of  their  manly  virtues. 

The  name  of  Marshall  is  as  inseparably  connected 
with  the  Constitution  of  the  United  States  as  that  of 
Hamilton  or  Madison  or  of  anyone  else  that  helped  to 
frame  it.  If  others  conceived  the  form  of  government 
which  it  was  to  ordain,  it  was  Marshall  that,  more  than 

241 


242  Addresses 

any  other  one  man,  gave  precision  to  its  meaning,  and 
translated  it  from  a  seeming  abstraction  into  a  practical 
force,  suited  to  the  varied  exigencies  of  national  life. 
The  value  of  the  instrument  and  of  the  interpretation 
which  it  has  received  are  both  attested  by  the  fact  that 
under  their  combined  influence  we  have  increased  in 
wealth,  in  population  and  in  intelligence  in  a  ratio  of 
which  history  has  never  recorded  a  kindred  example. 
If  we  have  failed  in  some  things,  and  if,  considering  our 
opportunities,  we  are  neither  as  good  nor  as  wise  as  we 
ought  to  be,  the  fault  has  not  been  with  the  Constitution, 
nor  with  the  decisions  of  Marshall,  but  with  ourselves. 
We  have  had  the  largest  measure  of  personal  freedom. 
We  have  had  the  selection  of  our  own  rulers ;  so  that  we 
cannot  lay  any  serious  miscarriage  to  the  form  of  our 
government.  It  is  imperfect,  as  all  things  that  we  know 
are  imperfect ;  but  it  is  extremely  doubtful  whether  any- 
thing better  could  be  devised.  Judging  from  the  result 
of  experiments  that  have  been  made  in  other  countries 
we  have  abundant  reason  to  be  content  with  the  instru- 
ment itself,  and  with  the  interpretation  of  the  powers 
of  the  government  by  the  great  Chief  Justice  and  his 
colleagues  to  whom  this  grave  and  important  duty  was 
intrusted ;  reflecting  that  there  is  no  government  that  by 
its  own  unaided  action  will  of  itself  work  out  satisfac- 
tory results.  A  popular  government  must  always  reflect 
the  follies  and  demerits  of  those  by  whom  it  is  controlled, 
as  well  as  their  virtues;  and  eternal  vigilance  is  not 
only  the  price  of  liberty,  but  it  is  the  price  of  almost 
everything  else  that  is  worth  having. 

Mr.  Gladstone  spoke  of  the  American  Constitution  as 
"the  most  wonderful  work  ever  struck  off  at  a  given 
time  by  the  brain  and  purpose  of  man."  This  saying 
has  been  made  the  subject  of  rash  and  unmerited  criti- 
cism, as  if  it  had  been  intended  to  convey  the  idea  that 
the  Constitution  owed  nothing  to  pre-existing  institu- 


John  Marshall  243 

tions,  to  the  lessons  of  history,  or  to  the  labors  of  many 
illustrious  men  in  the  science  of  government.  It  is 
needless  to  say  that  if  the  framers  of  that  instrument 
had  discarded  such  obvious  means  of  enlightenment  their 
work  would  have  proved  but  an  abortion.  In  one  sense 
it  is  certainly  true  that  there  is  nothing  new  under  the 
sun.  It  detracts  not  from  the  fame  of  the  inventor  of 
the  steam  engine  to  say  that  he  only  made  use  of  a  well- 
known  force  and  of  well-known  materials  to  accomplish 
his  results.  So  it  was  with  the  framers  of  the  Constitu- 
tion. The  materials  with  which  to  accomplish  their 
task  were  at  hand;  but  the  work  of  combination  and 
adjustment  between  the  powers  of  the  Federal  govern- 
ment and  those  of  the  several  States,  and  between  the 
different  departments  of  the  Federal  government, 
required  a  discriminating  wisdom  which  might  well 
excite  the  admiration  of  the  great  English  statesman. 
But  Gladstone  was  not  alone  in  his  opinion;  for  the 
American  Constitution  has  been  used  as  a  model  for 
every  written  constitution  that  has  been  formed  in  any 
part  of  the  world  since  its  adoption.  If  imitation  is  the 
sincerest  form  of  flattery  it  is  because  it  affords  evidence 
of  real  admiration. 

The  Constitution  of  the  United  States  was  indeed  the 
result  of  a  long  and  a  complex  evolution.  The  Con- 
tinental Congress,  organized  in  1774,  by  the  assumption 
of  powers  not  expressly  granted,  and  by  a  display  of 
vigilance  rarely  equalled,  managed  for  six  years  to  pre- 
serve the  country  from  the  most  fatal  of  calamities ;  but 
when  it  was  superseded  by  the  Articles  of  Confederation 
the  bonds  of  union  were  practically  dissolved,  and  the 
government  fell  into  such  a  state  of  impotency  that  it 
was  powerless  to  enforce  its  edicts,  or  to  command  respect 
either  at  home  or  abroad.  The  creation  of  this  phantom, 
miscalled  a  government,  added  untold  difficulties  to  the 
task  set  before  Washington,  which  was  already  burdened 


244  Addresses 

with  inconceivable  embarrassment.  On  the  7th  day  of 
June,  1781,  just  before  the  disbanding  of  the  army,  he 
addressed  a  circular  letter  to  the  governors  and  presi- 
dents of  the  States,  urging  the  necessity  for  a  closer 
union;  but  the  time  was  not  yet  ripe  for  any  definite 
action.  In  the  meantime  the  States  proceeded  on  their 
several  ways,  each  endeavoring  to  enrich  itself  in  the 
good  old  medieval  fashion.  New  York  levied  heavy 
duties  on  every  vessel  that  entered  her  ports,  on  all  mer- 
chandise that  crossed  her  border,  on  every  wagon  load 
of  wood  that  came  from  Connecticut,  on  all  of  the  mar- 
keting that  came  from  New  Jersey.  Connecticut  retal- 
iated by  a  league  of  her  business  men  agreeing  not  to 
have  any  commerce  or  intercourse  with  New  York  or  her 
people.  New  Jersey  retaliated  by  taxing  at  the  rate  of 
$1,800  a  year  a  small  lighthouse  that  New  York  had 
erected  within  her  borders  on  an  acre  of  sandy  beach 
that  she  had  bought  for  that  purpose.  A  colony  from 
Connecticut  having  settled  in  the  Wyoming  valley  in 
Pennsylvania,  the  legislature  of  Pennsylvania  sent  a 
troop  of  soldiers  to  seize  their  lands,  which  they  had 
bought  and  paid  for,  and  to  drive  them  into  the  wilder- 
ness. Their  homes  were  burnt,  five  hundred  people  were 
turned  out  of  doors,  many  died  from  sickness  and  expo- 
sure, and  seventy-six  were  captured,  handcuffed  and  put 
in  jail.  All  of  the  States,  except  Delaware  and  Con- 
necticut, were  seized  with  a  frenzy  for  the  issue  of  paper 
money,  which,  declining  steadily  in  value,  produced 
widespread  calamity  and  distress,  ending  in  riots  and 
open  resistance  to  the  holding  of  the  courts  and  the  col- 
lecting of  debts.  Every  State  had  some  quarrel  with  its 
neighbors,  and  the  country  was  fast  drifting  into  anarchy. 
Commerce  languished,  public  credit  expired,  business  of 
all  kinds  was  paralyzed,  and  intelligent  men  in  the  old 
world  made  up  their  minds  that  the  American  experiment 
had  speedily  come  to  a  disastrous  end;  while  not  a  few 


John  Marshall  245 

on  this  side  of  the  water  were  inclined  to  the  same  dis- 
mal conclusion.  But  in  the  impending  gloom  "Washing- 
ton still  preserved  his  faith  in  that  community  of  sym- 
pathy and  interest  which  at  a  later  date  the  greatest  of 
civil  wars  could  not  obliterate.  In  the  darkest  hour  of 
that  period  of  discord  and  despondency,  he  wrote:  "It 
is  as  clear  to  me  as  A,  B,  C,  that  an  extension  of  Federal 
powers  would  make  us  one  of  the  most  happy,  wealthy, 
respectable  and  powerful  nations  that  ever  inhabited  the 
terrestrial  globe.  Without  them  we  shall  soon  be  every- 
thing which  is  the  direct  reverse.  I  predict  the  worst 
consequences  from  a  half-starved,  limping  government, 
always  moving  upon  crutches,  and  tottering  at  every 
step." 

It  may  seem  now  to  have  been  an  easy  thing  for  Wash- 
ington to  predict  the  future  greatness  and  prosperity  of 
his  country ;  but  at  that  time  his  prophecy  was  no  doubt 
regarded  with  a  good  deal  of  incredulity.  It  was  at  a 
still  later  date  that  as  bright  a  man  as  Fisher  Ames,  in 
speaking  of  the  unoccupied  territory  of  the  United  States, 
said:  "It  is  an  immeasurable  wilderness;  and  when  it 
will  be  settled  is  past  calculation.  Probably  it  will  be 
near  a  century  before  these  people  will  be  considerable. ' ' 

After  many  abortive  efforts  the  States  were  induced 
to  send  their  delegates  in  a  half-hearted  way  to  the 
convention  that  met  in  Independence  Hall,  at  Phila- 
delphia, for  the  purpose  of  forming  a  more  perfect 
union. 

During  the  session  of  that  convention  Washington  one 
day  made  a  few  remarks  that  probably  have  had  an 
immense  effect  on  the  destiny  of  our  country.  It  often 
happened  that  when  a  proposition  was  made  some  mem- 
ber would  object  to  it,  not  because  it  was  not  wise,  but 
because  if  inserted  in  the  Constitution,  the  Constitution 
would  not  be  adopted  by  the  people  of  the  States.  Hav- 
ing heard  this  objection  often  repeated,  Washington  at 


246  Addresses 

last  rose  from  the  chair  in  which  he  was  presiding,  and 
said  with  some  emotion : 

"It  is  but  too  probable  that  no  plan  that  we  propose 
will  be  adopted.  Perhaps  another  dreadful  conflict  is 
to  be  sustained.  If,  to  please  the  people,  we  offer  what 
we  ourselves  disapprove,  how  can  we  afterwards  defend 
our  work?  Let  us  raise  a  standard  to  which  the  wise 
and  the  honest  can  repair;  the  event  is  in  the  hand  of 
God." 

From  that  time  the  argument  in  favor  of  a  makeshift 
Constitution  was  heard  no  more. 

The  formation  of  the  union  of  the  States  was  primarily- 
due  to  Washington.  Without  his  enormous  influence 
the  task  would  have  been  hopeless.  Grayson,  who 
opposed  the  adoption  of  the  Constitution,  said : 

"Were  it  not  for  one  great  character  in  America  so 
many  men  would  not  be  for  the  government.  We  do  not 
fear  while  he  lives ;  but  who  besides  him  can  concentrate 
the  confidence  and  affections  of  all  America?"  Monroe 
wrote  to  Jefferson :  "Be  assured  Washington 's  influence 
carried  this  government." 

Mr.  Bancroft  says  that  if  the  idea  had  not  prevailed 
that  Washington  would  accept  the  presidency,  the  Con- 
stitution could  not  have  been  adopted.  But  the  form 
which  the  Constitution  assumed  was  due  to  Madison  more 
than  to  any  other  man ;  and  he  was  fitly  called  the  father 
of  the  Constitution. 

It  was  in  the  Virginia  convention  convoked  to  consider) 
the  question  of  the  adoption  of  the  Constitution  that  we 
first  catch  a  glimpse  of  John  Marshall  in  a  scene  worthy 
of  his  talents. 

"Conspicuous  in  the  ranks  of  Federalists,  and  unsur- 
passed in  debate,"  says  Mr.  Fiske,  "was  a  tall  and  gaunt 
young  man,  with  beaming  countenance,  eyes  of  piercing 
brilliancy,  and  an  indescribable  kingliness  of  bearing, 
who  was  by  and  by  to  become  Chief  Justice  of  the  United 


John  Marshall  247 

States,  and  by  his  masterly  and  far-reaching  decisions 
to  win  a  place  side  by  side  with  Madison  and  Hamilton 
among  the  founders  of  our  national  government.  John 
Marshall,  second  to  none  among  all  the  illustrious  jurists 
of  the  English  race,  was  then,  at  the  age  of  thirty-three, 
the  foremost  lawyer  of  Virginia.  He  had  already  served 
for  several  terms  in  the  State  legislature ;  but  his  national 
career  began  in  this  convention,  where  his  arguments, 
with  those  of  Madison,  re-enforcing  each  other,  bore 
down  all  opposition." 

Yet  in  that  convention  the  Constitution  was  only  car- 
ried by  ten  votes.  In  New  York  it  was  only  adopted  by 
a  majority  of  three  votes,  notwithstanding  the  super- 
human efforts  of  Hamilton ;  and  after  that  so  little  inter- 
est in  the  new  government  was  felt  in  that  State  that 
her  people  took  no  part  in  the  first  election  of  Washington 
to  the  presidency. 

When  Marshall  accepted  the  position  of  Chief  Justice 
we  may  well  suppose  that  he  did  so  with  great  reluctance. 
Now  when  our  country  has  become  a  giant  among  the 
nations  of  the  earth  it  is  difficult  for  us  to  have  a  realiz- 
ing sense  of  the  feebleness  of  our  infancy  a  hundred 
years  ago  when  the  only  great  thing  to  be  noted  in  our 
condition  was  the  group  of  great  men  that  moulded  the 
national  destiny.  At  that  time  the  entire  population  of 
the  United  States,  settled  almost  wholly  along  the  Atlan- 
tic coast,  was  about  the  same  as  that  of  the  present  State 
of  Illinois;  and  of  these  nearly  one-fifth  were  slaves. 
The  territory  now  forming  the  States  of  Alabama  and 
Mississippi  was  in  possession  of  the  Indians,  and  was 
appropriately  called  the  Indian  Territory.  The  vast 
extent  of  country  north  of  the  Ohio  River,  extending 
from  the  Alleghenies  to  the  Mississippi  River,  and  from 
the  Ohio  to  the  lakes,  was  a  wilderness.  Only  a  few 
hardy  pioneers  had  immigrated  from  beyond  the  moun- 
tains to  Kentucky  and  Tennessee.    Florida  belonged  to 


248  Addresses 

Spain,  Louisiana  to  France,  and  all  of  the  country  west 
of  the  Mississippi,  reaching  to  the  Pacific,  nearly  the 
whole  of  which  was  unexplored,  belonged  to  those  two 
countries.  With  the  exception  of  New  York,  which  had 
sixty  thousand  inhabitants,  there  was  not  a  city  in  the 
United  States  as  large  as  Little  Rock  is  now.  Phila- 
delphia had  41,000,  and  Boston  nearly  25,000.  The 
national  capital,  recently  established  at  Washington, 
might  then  be  considered  as  a  sort  of  Tadmor  in  the 
Wilderness,  since  a  city  begun  but  not  yet  built  and  a 
city  that  has  been  destroyed  possess  certain  features  in 
common.  The  total  revenues  of  the  government  for  the 
year  1800  were  less  than  $13,000,000.  Communication 
between  the  different  parts  of  the  country  was  slow  and 
difficult.  It  took  the  daily  stage  coach,  traveling  at  what 
was  then  considered  a  dizzy  rate  of  speed,  from  a  week 
to  ten  days  to  traverse  the  distance  from  Boston  to  New 
York,  a  longer  time  than  it  takes  now  to  go  from  Maine 
to  California.  The  country,  still  suffering  from  the 
exhaustion  caused  by  the  Revolution,  and  from  the  weak- 
ness of  the  late  Confederation,  was  depressed,  and  the 
future  looked  dark  and  uncertain.  The  Supreme  Court 
had  as  yet  acquired  no  prestige;  and  its  tremendous 
influence  on  the  future  destiny  of  the  government  was  as 
yet  unforeseen.  The  salary  of  the  Chief  Justice  was 
fixed  at  $4,000  a  year.  Marshall  had  only  a  short  time 
previously  declined  a  seat  in  the  same  court.  Plainly 
the  offer  under  these  circumstances  of  the  place  of  Chief 
Justice  to  a  man  in  the  very  noonday  of  life  who  was 
the  acknowledged  leader  of  the  bar  in  Virginia,  was  not 
very  tempting.  Had  he  imbibed  that  commercial  spirit, 
as  it  is  called,  that  so  largely  prevails  to-day,  he  cer- 
tainly would  have  declined.  If  he  had  declined,  and  a 
weak  man  had  succeeded  to  the  position,  it  is  probable 
that  the  consequences  would  have  been  eminently 
disastrous.     Nearly  all  of  the  decisions  that  have  been 


John  Marshall  249 

rendered  by  the  Supreme  Court  on  great  constitutional 
questions  have  been  by  a  divided  court;  and  several 
times  by  a  majority  of  only  one.  If  you  would  see  what 
abysses  we  have  escaped  you  have  only  to  read  the 
dissenting  opinions  from  the  organization  of  the  court 
down  to  the  present  time.  Nothing  could  have  been 
more  fortunate  than  the  appointment  of  Marshall;  and 
it  has  been  well  said  that  it  redeemed  all  of  the  faults 
of  the  administration  of  the  elder  Adams,  a  man  of 
intense  patriotism  and  of  great  ability,  but  sometimes 
wanting  in  practical  wisdom.  When  Marshall  took  his 
seat  on  the  bench  one  hundred  years  ago  to-day  the  gov- 
ernment was  endowed  with  a  new  force;  the  judicial 
department  had  a  man  at  the  helm  with  a  clear  head,  a 
pure  heart  and  a  strong  arm,  in  all  things  qualified  to 
perform  the  momentous  duties  assigned  to  him,  destined 
to  maintain  the  Constitution  and  uphold  the  majesty  of 
the  law  for  more  than  a  third  of  a  century.  The  influ- 
ence of  such  a  man  under  such  circumstances  is  some- 
thing that  is  wholly  beyond  human  computation. 

When  the  Constitution  had  been  once  adopted,  men 
read  into  it  different  meanings  according  to  their  pre- 
dilection or  their  prejudices.  It  began  by  the  words: 
"We,  the  people  of  the  United  States."  After  it  had 
been  engrossed  a  member  suggested  that  the  words, 
"Done  in  convention  by  the  unanimous  consent  of  the 
States  present,"  be  added;  which  was  done  without 
objection ;  the  purpose  being  to  show  that  it  was  equally 
binding  on  the  people  and  on  the  States.  Though  there 
was  nothing  inconsistent  in  these  two  phrases,  yet  each 
became  the  watchword  of  two  different  political  parties, 
one  asserting  that  the  whole  people  were  bound  by  the 
compact,  and  the  other  that  the  Constitution  was  only 
a  league  between  the  several  States ;  a  controversy  which 
called  into  existence  immense  libraries  of  books  and 
pamphlets,  with  speeches  innumerable,  and  which  was 


250  Addresses 

not  definitely  settled  until  the  close  of  our  Civil  War, 
But  that  was  not  the  only  question  to  be  passed  on.  The 
Constitution  is  extremely  terse  and  concise;  necessarily 
so,  because  in  the  grant  of  powers  to  a  government  it  is 
quite  impossible  to  foresee  and  to  provide  for  the 
special  circumstances  under  which  they  are  to  be  exer- 
cised. If  the  Constitution  had  gone  more  into  details, 
the  difficulties  of  construction  would  have  been 
increased,  because  prolixity  and  perspicuity  are  by 
no  means  convertible  terms.  The  real  meaning  of  the 
Constitution  as  applied  to  any  particular  state  of  facts 
could  only  be  understood  as  occasion  should  arise ;  and  to 
the  Supreme  Court  was  delegated  this  duty,  the  most 
important  that  ever  devolved  on  any  court  of  justice. 
To  the  old  lawyers  of  the  common  law,  of  whom  Coke 
is  the  most  famous  example,  the  only  way  to  construe  a 
written  law  was  to  regard  it  much  as  a  military  order  is 
regarded  by  subordinates ;  that  is,  literally,  by  the  most 
obvious  meaning  of  the  words,  and  by  the  aid  of  a  dic- 
tionary, if  need  be.  It  may  be  said  that  it  is  mostly  due 
to  Lord  Nottingham  and  to  Lord  Hardwicke  that  this  lit- 
eral method,  which  often  resulted  in  the  grossest  absurd- 
ities, has  been  generally  superseded,  except  in  the  domain 
of  the  criminal  law,  by  a  method  that  looks  not  only  to 
the  words,  but  to  the  time,  place  and  circumstances  under 
which  they  were  used,  so  as  to  get  at  the  true  legislative 
intent.  It  was  natural  that  those  who  had  opposed  the 
adoption  of  the  Constitution  should  favor  such  a  strict 
construction  as  would  confine  the  powers  of  the  Federal 
government  to  the  narrowest  range  possible.  On  the 
other  hand  there  were  those  who  favored  such  a  lati- 
tudinarian  construction  as  would  immeasurably  enlarge 
the  Federal  power,  and  would  tend  to  dwarf  the  States 
down  to  the  last  fraction  of  insignificance.  It  was  the 
sincere  aim  of  Marshall  to  avoid  either  extreme;  and 
the  general  verdict  is  that  he  succeeded  in  doing  so  in  a 


John  Marshall  251 

manner  quite  impossible  to  anyone  not  possessed  of  like 
abilities  joined  to  the  most  impartial  judgment. 

No  one  ever  had  finer  opportunities  for  understanding 
the  Constitution  than  Marshall.  He  had  heard  its  provi- 
sions and  its  objects  discussed  from  every  possible  stand- 
point by  men  of  extraordinary  talents  from  his  youth  up, 
and  in  that  immortal  discussion  he  had  himself  taken  an 
important  part;  in  the  settling  of  the  questions  that 
arose  for  decision  he  had  the  aid  of  lawyers  of  pre- 
eminent ability,  at  a  time  when  the  bar  had  a  luster 
which  perhaps  it  has  never  since  recovered ;  and  he  gave 
to  them  the  deliberate  and  laborious  attention  of  a  mind 
whose  vigor  and  acuteness  in  the  solution  of  legal  ques- 
tions excited  and  still  commands  universal  respect  and 
admiration.  But  clear  as  his  convictions  undoubtedly 
were,  no  one  can  read  his  decisions  on  grave  constitutional 
disputes  without  perceiving  that  he  was  habitually 
oppressed  by  a  profound  sense  of  the  heavy  responsi- 
bility which  he  incurred  in  the  discharge  of  so  sacred  a 
duty.  In  such  cases  that  sentiment  seems  to  pervade  his 
opinions  like  the  deep  and  solemn  undertone  of  the  sea. 
Many  of  these  questions  had  an  importance  far  greater 
than  any  that  had  ever  been  presented  to  any  human 
tribunal.  When  Lord  Hardwicke  in  1750  decided  the 
case  of  Penn  vs.  Lord  Baltimore,  that  had  been  pending 
in  his  court  for  more  than  seventy  years,  and  which 
involved  the  boundary  between  the  provinces  of  Pennsyl- 
vania and  Maryland,  being  impressed  with  the  magnitude 
of  the  controversy,  he  spoke  of  it  as  one  "for  the  deter- 
mination of  the  right  and  boundaries  of  two  great  pro- 
vincial governments  and  three  counties,  of  a  nature 
worthy  of  the  judicature  of  a  Roman  senate  rather  than 
of  a  single  judge."  And  yet  that  controversy  was  but 
small  and  insignificant  contrasted  with  many  that  came 
before  Marshall,  involving  the  future  of  our  country  for 
all  time  to  come.    That  he  was  absolutely  infallible  his 


252  Addresses 

warmest  admirer  would  not  claim;  but  the  constantly 
diminishing  number  of  his  critics  and  the  diminishing 
number  of  their  followers  sufficiently  attest  the  fact  that 
his  immense  fame  as  a  judge  is  well  founded  and  imper- 
ishable. No  other  judge  had  so  many  things  to  do;  no 
other  did  them  so  well. 

Marshall  from  his  youth  up  was  a  man  of  studious 
habits,  and  of  indefatigable  industry ;  but  in  addition  to 
these  he  had  what  few  men  ever  possessed,  a  genius  for 
the  law  as  distinct  as  that  of  Napoleon  for  war.  In  that 
specialty  he  was  thoroughly  at  home;  and  within  its 
limits  he  is  conspicuously  pre-eminent.  His  colleague, 
Judge  Story,  was  more  learned  than  he ;  but  Story  him- 
self was  always  the  first  to  admit  the  superiority  of  Mar- 
shall; a  remarkable  instance,  because  very  learned  men 
are  apt  to  overvalue  their  special  attainments,  and  to 
undervalue  the  qualifications  of  those  of  inferior  acquire- 
ments, though  possessed  of  greater  native  ability.  There 
was  a  natural  modesty  about  Marshall  that  disarmed 
rivalry ;  but  it  is  but  just  to  say  that  this  lofty  apprecia- 
tion of  his  colleague  of  itself  indicates  unusual  eleva- 
tion and  nobility  of  character  on  the  part  of  Judge 
Story.  Indeed  the  close  friendship  that  subsisted 
between  these  two  great  judges,  which  was  only  dis- 
solved by  death,  is  one  of  the  most  admirable  episodes 
to  be  found  in  the  history  of  our  country. 

Marshall  possessed  in  an  eminent  degree  the  most 
essential  qualities  that  go  to  the  making  of  a  judge.  He 
was  a  thoroughly  pure  man;  sincere,  upright  and  con- 
scientious, with  a  strong  and  wholesome  sense  of  what  is 
right  and  what  is  wrong.  He  possessed  also  a  happy 
and  well  poised  judicial  temperament,  with  that  fearless- 
ness and  independence  of  character  that  enables  one  to 
perform  his  duty  as  God  gives  him  grace  to  see  it  with- 
out regard  to  praise  or  blame.  Living  in  tumultuous 
times  he  was  often  censured  and  maligned;  but  as  the 


John  Marshall  253 

needle  of  the  compass  in  the  middle  of  the  ship  still 
points  unerringly  toward  the  polar  star,  regardless  of 
wind  or  wave,  so  no  amount  of  clamor,  or  censure,  or 
applause  could  induce  him  to  diverge  a  hair's  breadth 
from  what,  with  coolest  and  most  dispassionate  judgment, 
he  deemed  to  be  the  line  of  duty.  No  judge  was  ever 
endowed  with  a  clearer  vision  of  the  most  complex  prob- 
lems that  can  be  presented  by  the  endless  combinations 
of  human  affairs.  He  possessed  a  most  remarkable 
faculty  of  separating  the  relevant  from  the  greatest  mass 
of  distracting  and  misleading  matter,  and  of  going 
straight  to  the  heart  of  every  controversy.  In  the  clear- 
ness and  lucidity  of  statement  which  leaves  nothing  upon 
which  to  hang  a  doubt  he  was  probably  never  excelled. 
In  this  respect  his  opinions  are  models  for  all  time.  He 
did  not  sow  them  thick  with  multitudinous  citations ;  and 
when  he  has  recited  the  facts  and  has  declared  the  law 
we  feel  that  he  has  made  everything  so  clear  that  a 
reference  to  numerous  authorities  would  be  superfluous. 
But  it  must  not  be  supposed  that  because  he  avoided  a 
needless  display  of  learning  Marshall  did  not  examine 
attentively  all  of  the  sources  of  legal  knowledge  before 
making  up  his  judgments.  No  man  was  more  untiring 
in  his  investigations,  or  more  unflagging  in  his  researches ; 
hence  it  is  very  dangerous  to  take  it  for  granted  that  any 
opinion  of  his  is  not  based  on  the  most  exhaustive  inquiry 
as  to  former  precedents.  That  very  able  and  discriminat- 
ing jurist,  Mr.  Hare,  in  his  note  to  the  opinion  delivered 
by  C.  J.  Marshall  in  Field  vs.  Holland,  says  rather  sar- 
castically: "Mr.  Justice  Cowen,  in  Pattison  vs.  Hall, 
had  satisfied  himself  that  he  had  consigned  to  insignifi- 
cance this  conclusive  authority  by  observing  that  in  this 
case  the  books  do  not  appear  to  have  been  consulted.  It 
should  be  remembered,  however,  that  there  are  some 
judges  who  consult  more  books  than  they  quote,  as  there 
are  others  who  quote  more  books  than  they  understand. ' ' 


254  Addresses 

One  striking  quality  to  be  noticed  in  the  opinions  of 
Marshall  is  the  sparing  use  that  he  makes  of  analogies. 
No  one  knew  better  that  though  analogies  are  often  very 
striking,  they  are  in  general  extremely  prone  to  deceive 
and  mislead.  With  his  close  reasoning,  his  masterly  and 
convincing  logic,  he  had  no  need  of  such  adventitious  aid. 
Fixing  his  gaze  searchingly  on  the  law  and  the  facts  of 
the  case  in  hand,  he  was  able  to  reach  satisfactory  con- 
clusions without  invoking  similitudes  which  might  be 
only  casual  or  incidental ;  and  it  is  largely  for  this  rea- 
son that  we  do  not  find  in  his  long  succession  of  adjudica- 
tions those  discrepancies  and  seeming  contradictions  that 
sometimes  mar  the  decisions  of  judges  not  undistin- 
guished for  learning  or  for  ability. 

It  has  been  said  of  some  artists  that  by  continually 
retouching  and  by  overelaboration  they  deprived  their 
works  of  originality,  and  divested  them  of  that  individual 
stamp  that  constituted  their  chief  merit.  No  such  charge 
could  be  laid  at  the  door  of  Marshall.  He  never 
attempted  to  embellish  his  opinions  by  fine  writing,  or 
by  showy  declamation,  nor  to  exhaust  his  subject  down 
to  the  last  word  or  syllable.  It  was  said  by  a  great  master 
of  the  art  of  expression  that  the  style  is  the  man;  and 
the  saying  is  certainly  true  of  Marshall.  His  character 
was  of  Doric  simplicity;  and  his  style  is  more  remark- 
able for  its  strength  and  unmistakable  clearness  of  out- 
line than  for  any  other  quality.  From  the  first  opinion 
that  he  delivered  in  the  prime  of  his  manhood  down  to 
the  last  that  he  delivered  when  he  was  an  old  man  eighty 
years  of  age,  we  perceive  the  same  clear  and  steady  light 
illuminating  everywhere  the  wide  and  varied  fields  of 
jurisprudence.  If  the  quality  of  his  work  has  a  uniform 
excellence  its  scope  is  immense;  and  it  remains  for  us 
and  for  those  who  are  to  come  after  us,  an  invaluable 
inheritance  forever.  Generations  hence,  when,  after  a 
thousand  vicissitudes,  the  face  of  the  earth  shall  have 


John  Marshall  255 

been  changed  and  renewed,  and  when  the  social  and 
national  life  shall  have  been  modified  by  a  thousand  influ- 
ences of  which  we  can  have  no  conception,  his  name  will 
be  as  a  beacon  to  guide,  to  guard  and  preserve.  Had 
he  written  no  opinions  save  those  explanatory  of  the 
principles  of  constitutional  law,  they  would  be  remem- 
bered and  studied  as  long  as  the  science  of  government 
is  cultivated;  but  his  labors  were  not  confined  to  these; 
and  there  is  no  domain  of  the  law  that  he  has  not 
enriched  with  the  inexhaustible  treasures  of  his  genius. 
It  is  no  impeachment  of  the  glory  and  renown  of  the 
greatest  of  the  Roman  jurists,  or  of  the  most  illustrious  of 
the  judges  of  England,  to  say  that  in  magnitude  and 
importance  his  works  far  transcend  their  united  achieve- 
ments. Like  them  he  sounded  all  of  the  depths  of  the 
law ;  but  while  they  expanded  and  ameliorated  the  wide 
circle  of  existing  systems  of  jurisprudence,  a  task  in 
which  he  proved  not  inferior  to  any  of  them,  his  duties 
called  him  beyond  into  the  virgin  fields  of  constitutional 
law,  where  mere  precedents  could  not  avail,  and  where 
all  of  the  resources  of  wise,  prudent  and  discerning  states- 
manship were  indispensable  requisites.  As  a  member 
of  the  Convention  of  Virginia,  and  during  his  brief 
career  in  Congress,  Marshall  exhibited  all  of  the  talents 
of  the  statesman,  as  well  as  those  of  the  most  accom- 
plished debater.  If  during  his  term  as  Chief  Justice  he 
could  also  have  had  a  seat  in  the  Senate,  as  Mansfield 
and  Camden  had  in  the  House  of  Lords,  his  influence  in 
the  legislative  department  would  probably  have  been 
weightier  and  more  decisive  than  theirs.  But  the  qual- 
ities that  would  have  enabled  him  to  achieve  other  tri- 
umphs were  not  left  to  rust  unused;  for  in  the  unex- 
ampled condition  in  which  the  new  government  was 
placed,  the  construction  of  the  Constitution  demanded 
of  the  court  over  which  he  presided  all  of  the  knowledge 
and  all  of  the  ability  which  the  most  perplexing  emer- 


256  Addresses 

geneies  could  exact  from  the  rulers  of  nations.  Here 
it  was  that  he  vindicated  his  claim  to  be  considered  not 
only  as  a  great  judge,  but  as  a  statesman  on  a  level  with 
the  highest  and  the  most  accomplished  that  the  world 
has  seen ;  with  such  men  as  Madison  and  Hamilton,  whose 
labors  he  was  destined  to  continue  and  to  perfect.  He 
built  on  the  foundations  that  they  had  laid;  but  with 
such  masterly  ability  that  no  seam  or  fissure  in  the  com- 
pleted structure  betrays  any  want  of  proportion  or  of 
harmony,  or  any  disparity  in  the  workmanship.  In  view 
of  his  double  fame  as  a  jurist  and  as  a  statesman,  crown- 
ing the  labors  of  a  lifetime,  John  Marshall  occupies  a 
position  on  the  page  of  history,  and  in  the  realm  of 
thought,  that  is  solitary  and  unique. 

His  contemporaries  have  handed  down  to  us  many 
pleasant  anecdotes  illustrative  of  the  unaffected  simplic- 
ity and  affability  of  manners  of  this  great  judge ;  of  his 
gentleness  of  demeanor,  his  kindly  consideration  for  the 
poor,  the  humble,  and  the  offending;  his  sincerity,  his 
unsuspecting  and  guileless  nature,  his  freedom  from  envy 
and  hatred  and  jealousy;  a  thousand  virtues  that 
endeared  him  to  all  who  knew  him,  and  bound  his 
friends  to  him  with  hooks  of  steel.  Perhaps  it  was  not 
quite  unfit  that  at  last,  when  his  career  was  done,  he 
should  die  within  sound  of  the  old  liberty  bell  that  had 
first  proclaimed  the  birth  of  a  nation  on  the  shores  of  the 
western  world,  and  in  sight  of  that  hall,  sacred  to  the 
most  inspiring  memories,  where,  under  the  presiding 
genius  of  Washington,  had  been  framed  that  Constitu- 
tion which  he  had  so  long  and  so  ably  expounded.  In 
that  fatal  hour,  when  the  world  receded  from  his  view, 
he  could  look  back  without  regret  over  a  well  spent  life ; 
a  life  full  of  labor  and  high  endeavor,  bathed  in  the 

"Eternal  sunshine  of  the  spotless  mind." 
Old  Ennius,  the  father  of  Latin  poetry,  expressed  the 


John  Marshall  257 

hope  that  after  he  had  crossed  the  Stygian  River  he 
might  still  live  on  the  lips  of  men.  His  wish  has  been 
fulfilled;  for  although  his  works  have  been  mostly  lost, 
his  name  is  still  remembered.  We  cannot  analyze  true 
greatness  or  assign  the  limits  of  its  duration  in  the 
minds  of  men.  Nothing  is  more  permanent,  and,  in  many 
cases  seemingly  more  unsubstantial,  than  the  immortal- 
ity of  fame.  It  crowns  the  verse  of  the  gentlest  of  poets 
as  well  as  the  bloody  deeds  of  the  warrior;  it  confers 
its  benedictions  on  the  orator  whose  impassioned  tones 
after  a  thousand  years  seem  still  to  linger  on  the  printed 
page;  on  the  artist  whose  name  may  outlive  the  revela- 
tions of  his  genius;  and  in  the  case  of  a  great  musical 
composer,  such  as  a  Beethoven  or  a  Mozart,  eternal  fame 
is  built  on  nothing  more  solid  than  invisible  sound- 
waves; and  yet  it  is  more  undestructible  than  monu- 
ments of  brass.  A  grateful  people  have  erected  a  statue 
to  Marshall  in  a  conspicuous  spot  in  the  national  capital, 
in  obedience  to  a  natural  instinct  that  has  induced  men 
from  most  remote  times  down  to  the  present  to  com- 
memorate in  materials  seemingly  enduring  their  love 
and  veneration  for  departed  worth ;  but  there  is  nothing 
to  guaranty  such  memorials  "  'gainst  the  tooth  of  time 
and  rasure  of  oblivion." 

If  we  visit  the  lands  where  the  arts  and  sciences  first 
rose  and  flourished,  the  fallen  column,  the  broken  arch, 
the  shattered  frieze  proclaim  with  silent  eloquence  the 
mutability  of  all  things  made  by  human  hands.  Not 
even  the  divine  beauty  of  the  creations  of  Phidias,  which 
lifted  to  ecstasy  the  thoughts  of  the  unlettered  Athenian 
populace,  could  save  them  from  the  hand  of  the 
destroyer.  But  Fame,  faithful  to  her  trust,  preserves 
amid  ruin  and  desolation  the  treasures  committed  to  her 
keeping.  Nearly  two  thousand  years  have  elapsed  since 
any  human  eye  gazed  on  the  canvas  of  Apelles;  but  his 
name  is  still  enrolled  as  the  greatest  of  painters.    If  all 


258  Addresses 

of  the  writings  of  Marshall  could  be  committed  to  the 
flames  his  name  would  still  linger  on ;  but  with  the 
fecundity  of  the  press,  which  will  preserve  and  multiply 
every  word  that  he  wrote,  his  voice  will  still  continue  to 
be  heard  by  all  coming  generations,  and  will  serve  to 
enlighten  and  to  instruct,  pleading  with  unabated  earn- 
estness for  whatever  is  right,  and  reasonable,  and  just,  and 
of  good  report.  His  name  will  be  hereafter  mentioned 
along  with  those  of  Ulpian  and  Papinian  and  all  great 
jurists  and  statesmen  whose  labors  have  contributed  to 
build  up  that  universal  jurisprudence  which  is  the 
strongest  ally  of  civilization,  the  surest  refuge  against 
wrong  and  oppression,  the  most  powerful  defender  of 
injured  innocence,  and  in  some  cases  its  avenger. 


"CHANGES    IN    THE    LAW   AND    ITS 
PRACTICE   IN  THE   HALF  CEN- 
TURY OF  MY  OBSERVATION" 

Address  Delivered  Before   the   St.  Louis  Law  School  Alumni 

Association  at  a  Banquet  Given  in  His  Honor, 

January  g,  igo2 


"CHANGES    IN    THE    LAW   AND    ITS 
PRACTICE   IN  THE  HALF  CEN- 
TURY OF  MY  OBSERVATION" 

As  I  am  to  address  the  Alumni  of  the  St.  Louis  Law 
School,  my  mind  naturally  goes  back  to  an  early  period 
of  my  professional  career,  the  day  never  to  be  forgotten — 
though  now  quite  remote — the  day  that  I  received  a 
diploma  from  another  law  school.  Such  an  incident 
forms  a  sort  of  epoch  in  one's  life,  a  self-dedication  to  a 
most  exacting  pursuit,  the  general  result  of  which  is 
quite  unknown.  The  diploma  was  not  a  chart,  not  even 
a  passport.  Of  itself  it  granted  no  rights  and  conceded 
no  privileges. 

And  yet  its  aspect  was  imposing.  With  a  wise  fore- 
sight it  was  written  in  Latin  so  that  it  could  be  read  with 
facility  when  the  English  language  shall  have  been  for- 
gotten. When  I  first  read  the  diploma  I  thought  that 
it  flattered  me  a  good  deal,  describing  me,  I  think,  either 
as  a  doctus  or  doctissimus.  If  the  man  that  wrote  it  had 
in  turning  over  the  leaves  of  the  dictionary  fallen  on  the 
word  indoctus  or  indoctissimus,  he  would  have  struck  a 
rich  field  of  productive  thought.  As  I  have  not  seen 
that  diploma  for  very  many  years,  and  have  not  the  least 
notion  as  to  what  became  of  it,  I  have  every  reason  to 
believe  that  it  is  somewhere  pursuing  its  devious  way  to 
that  remote  posterity  to  which  it  was  addressed.  The 
diploma  was  not  of  much  importance ;  but  the  law  school 
was  of  immense  advantage;  hence  I  have  always  been 
an  ardent  advocate  of  schools  of  that  kind,  believing  that 
the  average  student  will  learn  in  a  good  law  school  more 

261 


262  Addresses 

in  two  years  than  he  will  learn  in  five  years  in  any  other 
way. 

I  know  that  it  is  sometimes  said  that  a  student  who  has 
just  graduated  in  a  law  school  thinks  that  he  knows  all 
of  the  law ;  but  I  have  never  met  one  of  that  sort.  He 
has  seen  too  many  law  books  ranged  along  the  shelves 
to  think  that  his  studies  are  ended.  He  perceives  that 
the  journey  is  a  long  one ;  and  he  is  usually  so  distrust- 
ful of  his  abilities  and  learning  that  he  trembles  at  the 
sight  of  the  first  client  with  a  feeling  of  infinite  pity  for 
his  confiding  and  helpless  innocence. 

Men  are  so  constituted  that  they  can  not  live  in  soli- 
tude; nor  can  they  live  in  society  without  laws:  hence 
man  is  essentially  a  law-making  animal.  Like  all  the 
emanations  of  the  human  mind,  the  law  must  always  be 
imperfect ;  sometimes  it  will  be  prostituted  to  unworthy 
purposes ;  and  yet  there  never  was  any  system  of  law 
that  was  not  better  than  no  law.  Fortunately  it  is  self- 
preserving  and  indestructible.  Anarchy  is  for  a  day; 
but  the  law  is  for  all  time.  Good  laws  are  among  the 
most  imperishable  of  all  of  the  creations  of  man;  and 
Napoleon  was  right  when  he  said  that  he  would  go  down 
to  posterity  with  his  code  in  his  hand. 

I  think  that  every  lawyer  toward  the  close  of  his 
career  must  sometimes  feel  as  if  he  had  always  been 
chasing  a  rainbow.  Hard  as  he  may  have  toiled,  exten- 
sively and  patiently  as  he  may  have  burned  the  midnight 
oil,  the  serene  and  infinite  law  defies  his  puny  efforts 
to  fix  its  limits,  to  distinguish  its  precepts,  to  define  and 
classify  the  countless  rules  and  exceptions  that  go  to 
make  up  its  wondrous  fabric.  It  is  the  mightiest  crea- 
tion of  the  human  intellect.  It  has  not  been  made  by 
any  one  man,  or  by  any  millions  that  can  be  computed, 
or  in  a  hundred  years,  or  in  a  thousand  years.  Begin- 
ning as  a  mere  rivulet  before  the  dawn  of  history  it  has 
come  down  through  all  the  ages,  receiving  at  every  step 


Changes  in  the  Law  and  Its  Practice    263 

some  additional  rill  or  rivulet  until  it  has  become  a 
mighty  river,  and  at  last  spreads  out  until  it  presents  a 
shoreless  sea. 

Laymen  sometimes  ask  us  why  the  law  cannot  be 
simplified.  The  answer  is  easily  made.  The  law  must 
hold  the  mirror  up  to  human  life,  and  must  adapt  itself 
to  every  phase  of  human  existence,  to  every  variety  of 
human  conduct.  It  must  take  note  of  every  child  as 
soon  as  it  is  born;  and  sometimes  before  it  is  born.  It 
must  take  notice  of  every  change  which  time  and  circum- 
stance produce.  If  he  marries,  the  law  will  be  there  to 
note  the  fact,  and  if  he  gets  a  divorce  the  law  is  sure  to 
be  present.  It  will  follow  him  like  his  shadow  through 
every  vicissitude  until  he  dies;  and  after  his  death  it 
will  take  notice  of  his  dead  body,  and  will  protect  the 
monument  that  has  been  erected  in  order  to  transmit  to 
posterity  a  record  of  the  virtues  that  he  ought  to  have 
possessed.  All  of  this  is  difficult  enough ;  but  complexity 
is  multiplied  when  you  have  to  consider  the  individual 
in  the  infinite  number  of  relations  that  he  may  assume 
towards  the  state  and  its  local  subdivisions,  towards 
individuals  and  persons  natural  and  artificial.  There 
must  be  rules  for  every  contract  that  he  makes,  and  for 
every  piece  of  property  that  he  acquires,  rules  of  title, 
management  and  disposition,  rules  to  keep  him  from 
doing  a  thousand  wrongs  to  which  he  may  be  tempted, 
and  to  keep  others  from  injuring  him;  and  it  may  be 
that  in  many  instances  the  law  will  have  to  inquire  into 
the  state  of  his  health  of  mind  and  body,  and  to  enter 
into  the  most  profound  scrutiny  of  the  secret  movements 
of  mind  and  heart.  The  law  that  does  not  foresee  and 
provide  for  these  and  many  thousands  of  other  condi- 
tions and  emergencies  is  so  imperfect  that  it  will  often 
result  in  the  grossest  injustice. 

Our  laws,  woven  in  the  loom  of  time,  are  the  result 
of  countless  experiments,  and  of  the  survival  of  the 


264  Addresses 

fittest.  Wrecks  of  repealed  statutes  and  of  overruled 
cases  lie  thick  along  the  line  of  its  progress;  and  from 
them,  if  it  were  worth  while,  we  might  construct  a  sys- 
tem that  would  be  a  caricature  of  the  law  as  it  now 
exists.  The  selection  has  been  made  after  practical 
tests,  and  with  infinite  toil  and  labor ;  so  that  at  present 
the  law  reflects  all  of  the  accumulated  civilization  and 
enlightenment  of  all  time.  It  cannot  do  otherwise  than 
keep  step  with  human  progress. 

It  is  sometimes  said  that  the  law  is  an  expensive 
luxury ;  but  take  it  all  in  all  it  is  the  cheapest  commodity 
in  the  market.  To  most  persons  the  idea  of  the  law  is 
chiefly  associated  with  proceedings  in  the  courts;  but 
they  in  themselves  are  but  as  the  foam  on  the  surface 
of  the  sea. 

There  are  millions  of  our  race  that  never  suspect  the 
existence  of  the  air  that  they  breathe;  and  there  are 
millions  of  men  in  our  country,  and  more  women,  that 
hardly  have  occasion  to  know  that  the  law  exists.  The 
law  that  spreads  its  golden  network  over  all  the  land, 
the  law  that  never  sleeps,  that  has  more  eyes  than  Argus, 
more  hands  than  Briareus,  that  protects  them  by  night 
and  by  day,  at  home  and  abroad,  is  to  them  hardly  more 
than  a  myth.  Considering  the  daily  commercial  trans- 
actions, the  countless  agreements  and  sales,  great  and 
small,  that  are  made  every  day,  we  may  be  sure  that 
not  more  than  one  transaction  out  of  millions  ever  finds 
its  way  into  the  courts. 

The  wealth  of  our  country,  consisting  of  houses,  lands, 
factories,  merchandise,  ships,  railways,  money,  the  cattle 
on  a  thousand  hills,  bills,  bonds,  notes  and  every  variety 
of  property,  is  so  great  as  to  defy  computation.  Every 
piece  of  property  has  an  owner ;  but  in  a  few  years  every 
acre  of  land,  all  of  the  houses,  railways,  ships  and  every 
other  piece  or  article  of  property  that  does  not  perish 
in  the  using,  even  down  to  the  last  rag  and  the  last 


Changes  in  the  Law  and  Its  Practice    265 

penny,  will  have  been  transferred  to  new  owners,  who 
will  not  have  paid  for  it  one  cent;  a  circumstance  that 
makes  us  feel  that  it  would  have  been  more  satisfactory 
to  us  if  the  tide  had  been  reversed,  and  we  could  have 
been  heirs  instead  of  ancestors.  The  law  makes  this 
tremendous  transfer  of  all  existing  wealth  with  but  little 
friction,  and  with  only  here  and  there  a  random  lawsuit. 

The  omnipotence  of  the  law  is  for  the  most  part  mani- 
fested silently,  without  judges,  without  writs,  without 
bailiffs,  and  without  lawyers. 

We  cannot  take  in  all  of  the  law  in  one  comprehen- 
sive glance.  Life  is  but  a  span,  an  ad  interim  affair, 
merely  a  short  paragraph  in  the  endless  and  illegible 
book  of  fate.  But  that  is  not  the  worst  of  it.  The  finite 
cannot  comprehend  the  infinite.  No  one  mind  can  sum 
up  the  experience  of  all  the  ages;  and  that  is  what  the 
law  does.  If  we  knew  all  of  the  law,  we  should  forget 
most  of  it  in  less  than  a  week.  If  we  do  not  know  all 
of  the  law,  we  know  part  of  it;  the  part  that  we  know 
sheds  light  on  the  rest;  and  we  know  where  to  find  the 
rest  of  it  if  need  be ;  and  so  we  get  along  the  best  we  can. 

Jean  Paul  Courrier  was  the  most  accomplished  Greek 
scholar  that  France  ever  produced.  He  could  converse 
or  write  in  Greek  with  as  much  fluency  and  ease  as  in 
his  native  tongue.  One  day  he  said  that  there  were  only 
four  or  five  persons  in  France  that  understood  Greek; 
and  he  added  that  the  number  that  understood  French 
was  much  less.  The  number  of  men  that  understand 
English  thoroughly  must  be  small ;  but  most  of  us  man- 
age to  get  along  with  far  less  knowledge  of  that  kind. 

Of  all  sciences  the  law  is  the  most  ancient.  In  our 
day  the  centre  of  time  has  been  shifted.  Formerly  we 
were  told  that  the  pyramids  of  Egypt  were  4,000  years 
old ;  now  archeologists  say  that  they  are  6,000  years  old. 
Thus  time  seems  to  be  growing  at  both  ends. 

Our  professional  retrospect  has  been  lately  extended 


266  Addresses 

in  a  most  unexpected  way.  Prof.  Hilpreth,  of  the  Uni- 
versity of  Pennsylvania,  in  excavating  the  ruins  of 
Nippur,  in  Mesopotamia,  lately  discovered  the  vault  of 
an  ancient  firm  of  attorneys  known  as  Murashu  &  Sons, 
who  are  supposed  to  have  lived  about  7,000  years  ago. 

We  used  to  consider  Abraham  as  one  of  the  ancients ; 
but  now  he  appears  to  be  painfully  modern.  Murashu 
&  Sons  were  practicing  law  in  Nippur  3,000  years  before 
Abraham  was  born  in  Ur  of  the  Chaldees,  which,  like 
Damascus,  was  of  more  recent  date.  They  were  farther 
removed  from  Abraham  than  we  are  from  Romulus  and 
Remus. 

This  vault  of  Murashu  &  Sons,  buried  under  twenty- 
seven  feet  of  cosmic  dust,  was  found  to  contain  legal 
documents  inscribed  on  tiles,  which  had  been  deposited 
there  for  safe-keeping.  One  of  these  that  was  deciphered 
was  a  bill  of  sale  of  a  ring  with  an  emerald  set,  con- 
taining a  guaranty  that  the  set  would  not  fall  out  for 
twenty  years.  The  document  is  in  the  highest  style  of 
the  art ;  and  all  that  it  lacks  to  make  it  valid  is  a  United 
States  revenue  stamp.  Doubtless  the  ring  was  intended 
to  adorn  some  high-born  lady,  and  to  enable  her  to  mul- 
tiply or  perpetuate  her  conquests.  No  better  confirma- 
tion of  the  ancient  saying  that  the  written  word  remains. 
The  lady  and  all  of  her  lovely  companions  are  faded  and 
gone,  and  have  long  since  been  swept  into  the  dust  bin 
of  oblivion.  The  city  was  destroyed  ages  ago,  and  yet 
the  vault  of  these  attorneys  has  guarded  these  precious 
documents  entrusted  to  its  care  until  a  man  from  a  world 
unknown  has  broken  into  its  privacy  and  revealed  its 
secrets.  Murashu  &  Sons  are  by  thousands  of  years  the 
oldest  members  of  the  profession  known  to  us ;  and  they 
make,  I  think,  a  good  showing.  This  vault  or  archive 
room  shows  that  they  were  prosperous  in  their  profes- 
sional pursuits;  and  its  contents  prove  that  they  were 
esteemed  and  trusted.   There  is  one  thing  that  I  suppose 


Changes  in  the  Law  and  Its  Practice    267 

we  shall  never  know,  and  that  is  whether  this  particular 
document  was  written  by  the  old  man,  or  by  one  of  the 
boys.  The  senior  member  was,  we  may  suppose,  a  man 
of  strong  family  affections,  since  he  took  his  sons  into 
business  with  him,  and  taught  them  the  way  in  which 
they  should  go.  We  should  cherish  his  memory;  and  I 
give  the  first  watch  of  the  night  to  the  elder  Murashu. 
As  all  of  our  ancestors  were  perhaps  Asiatics  in  that 
early  day,  it  may  be  that  some  drops  of  his  blood  now 
circulate  in  the  veins  of  some  of  our  most  distinguished 
jurists,  and  we  have  evidence  that  some  of  the  law  of 
his  day  has  trickled  down  through  generations  to  our 
own  times. 

No  doubt  this  old  lawyer  attended  banquets,  for  the 
ancients  excelled  us  in  that  function.  We  have  read  of 
the  Homeric  feasts,  and  of  the  feast  of  Belshazzar  when 
a  toast  was  written  on  the  wall  that  was  not  printed  in 
the  programme.  It  is  probable  that  at  such  times  the 
elder  Murashu  drank  to  the  health  of  the  king,  and 
prophesied  that  his  throne  would  endure  forever. 

We  do  something  of  the  same  sort  now ;  but  we  hardly 
dare  to  think  of  what  may  happen  in  the  next  7,000 
years.  It  may  be  that  after  Macaulay's  New  Zealander 
has  seated  himself  on  a  broken  arch  of  London  bridge  to 
sketch  the  ruins  of  St.  Paul's,  he  may  take  the  first 
flying  machine,  and,  a  few  hours  later,  he  may  seat  him- 
self on  a  shattered  tower  of  the  Brooklyn  bridge  and 
sketch  the  ruins  of  Tammany  Hall. 

In  my  time  the  law  has  made  great  progress,  though 
in  some  branches  progress  has  been  slow.  It  took  the 
Supreme  Court  of  the  United  States  nearly  a  hundred 
years  to  define  the  jurisdiction  of  the  admiralty  courts. 
But  extensive  reforms  that  I  need  not  enumerate  have 
been  made  suddenly  in  obedience  to  a  growing  public 
sentiment  and  an  increasing  sense  of  justice  as  the  only 
solid  foundation  of  jurisprudence. 


268  Addresses 

Some  branches  of  the  law  have  been  expanded  to  an 
amazing  extent.  When  I  was  admitted  to  the  bar  the  law 
as  to  corporations  was  in  its  infancy;  and  corporations 
themselves  were  as  modest  as  the  violet  that  grows  by  the 
wayside.  At  present  they  are  like  the  genius  that  the  fish- 
erman in  the  Arabian  Nights  released  from  a  casket  by 
the  shore  of  the  sea,  and  which  at  once  increased  in  size 
and  bulk  until  its  head  touched  the  skies,  and  its  form 
darkened  all  the  landscape.  At  one  time  the  question  was 
as  to  what  we  should  do  with  the  corporations ;  but  now 
the  question  is  what  are  the  corporations  going  to  do  with 
us;  and  no  one  seems  to  be  able  to  answer  it. 

The  bar  has  changed.  The  metallic  pen,  after  a  stub- 
born resistance,  drove  out  the  immemorial  goose-quill; 
and  now  the  stenographer  and  typewriter  have  super- 
seded both.  Three  types  of  lawyers  have  wholly  dis- 
appeared. One  of  these  was  the  lawyer  that  made  it  a 
point  to  know  nothing  but  the  law.  He  got  to  be  satur- 
ated with  the  law  like  an  old  meerschaum  pipe  is  with 
nicotine.  You  might  suppose  that  his  heart  was  only 
an  odd  volume  of  Coke's  Institutes,  opening  and  shut- 
ting in  its  pulsations  like  a  bivalve,  and  that  the  cor- 
puscles of  his  blood  were  discs  punched  out  of  an  old 
copy  of  the  Revised  Statutes.  With  all  of  his  labor  and 
supreme  self-dedication,  he  was  not  a  great  success;  he 
was  narrow  and  pedantic,  inelastic,  and  wanting  in 
versatility. 

The  second  type  was  the  technical  lawyer  who  scrutin- 
ized as  with  a  microscope  every  writ,  bond  for  costs  and 
pleading  to  find  a  "t"  that  was  not  crossed,  or  an  "i" 
that  was  not  dotted.  Liberal  statutes  of  amendment  cut 
the  ground  from  under  his  feet;  he  was  swallowed  up, 
and  the  land  that  knew  him  knows  him  no  more. 

The  next  was  the  forensic  orator,  a  being  not  extremely 
rare  in  those  days ;  the  most  interesting  character  in  the 
profession;  one  who  could  light  up  with  wit  and  humor 


Changes  in  the  Law  and  Its  Practice    269 

the  driest  subject,  and  who  held  the  golden  keys  that 
unlocked  the  fountains  of  laughter  and  of  tears.  During 
the  late  years  we  have  had  at  the  bar  able  rhetoricians 
and  splendid  debaters;  but  the  old-time  forensic  orator 
who  made  his  impassioned  and  invincible  appeal  to  the 
heart  is  as  dead  as  the  dodo. 

It  is  said  that  the  poets  have  gone  the  same  way.  It 
is  certainly  true  that  to-day  the  living  poets  play  no 
important  part  either  in  the  business  or  the  intellectual 
entertainment  of  the  world ;  and  the  poets  that  are  dead 
have  fallen  into  a  somewhat  neglected  condition.  In  my 
youth  people  really  read  the  works  of  the  poets;  and 
some  pretty  tough  ones,  I  must  admit,  such  books  as 
MePherson's  Ossian,  Pollock's  Course  of  Time,  Tupper's 
Proverbial  Philosophy,  and  other  books  of  that  sort. 
To-day  men  and  women  seem  to  read  novels  as  if  their 
lives  depended  on  it ;  and  the  oracles  of  poetry  are  dumb. 
The  modern  lover  may  sigh  like  a  furnace ;  but  he  could 
not  indite  a  sonnet  to  his  lady's  eyebrow  for  the  soul  of 
him.  He  sticks  to  prose  and  eschews  poetry,  which,  as 
Mr.  Silas  Wegg  remarked  "comes  more  expensive." 
Fletcher  of  Saltoun  said,  ' '  Permit  me  to  make  a  nation 's 
ballads,  and  I  do  not  care  who  makes  its  laws. "  It  is  a 
pity  that  he  does  not  live  now,  when  he  would  have  all 
of  the  field  to  himself,  and  no  competition. 

Lately  I  read  an  article  written  by  some  college  pro- 
fessor saying  that  the  decay  of  oratory  was  due  to  the 
modern  habit  of  reading  newspapers.  But  lawyers  are 
not  much  given  to  reading  newspapers.  And  then,  how 
is  it  about  the  clergy  ?  Many  of  them  are  distinguished 
for  learning  and  ability ;  but  where  are  the  Bossuets,  the 
Stillingfleets,  the  Wesleys  and  the  Whitefields?  The 
clergy  do  not  spend  much  of  their  time  in  poring  over 
newspapers,  unless  I  am  greatly  misinformed.  They 
cannot  be  accused  of  reading  the  yellow  journals,  which 
are,  I  should  think,  the  most  sterilizing. 


270  Addresses 

It  seems  to  me  that  this  most  unhappy  desertion  is 
due  to  another  cause.  During  the  last  half  century 
science  has  made  an  immense  progress;  and  more  than 
ever  before  its  rigid  methods  have  been  brought  within 
popular  comprehension.  Methods  which  exclude  severely 
whatever  is  speculative  or  doubtful  have  affected  all  of 
the  lines  of  intellectual  inquiry,  just  as  the  minds  of 
previous  generations  were  tinged  by  studies  of  abstract 
theology,  or  metaphysics,  or  successively  in  many  other 
ways,  but  only  for  a  time. 

It  is  often  said  that  we  live  in  a  practical  age,  but 
that  is  only  a  part  of  the  truth.  We  live  in  a  scientific 
and  a  mechanical  age.  Science  has  analyzed,  measured, 
weighed,  located,  scheduled,  catalogued  and  ticketed 
every  conceivable  thing  in  the  heavens,  in  the  earth  and 
in  the  waters  under  the  earth  with  mathematical  preci- 
sion, and  has  divided  the  whole  universe  into  squares  and 
sections,  marked  by  stone  walls  and  barbed-wire  fences, 
leaving  absolutely  no  place  for  roving  fancy  and  imagina- 
tion. How  can  the  poet  or  the  orator  grow  eloquent  over 
the  serene  splendor  of  the  midnight  moon  when  we  know 
that  the  moon  is  only  the  corpse  of  a  dead  world,  tied  by 
invisible  bands  to  the  earth,  following  us  in  our  travels 
like  a  stealthy  policeman;  that  in  its  wide  spaces  there 
is  not  a  bird,  or  an  insect,  or  a  blade  of  grass;  that  if 
mountains  should  reel  and  fall  they  would  make  no 
sound,  and  raise  no  dust,  because  there  is  no  air  to  float 
either;  that  in  its  arid  spaces  there  is  not  a  drop  of 
water,  nor  even  a  drop  of  moonshine  whiskey.  Evidently, 
if  we  are  to  be  accurate,  we  must  count  the  moon  out — 
and  a  good  many  other  things  besides. 

Then  how  is  it  with  mechanics?  We  are  told  that 
when  Aristole  went  to  a  barber's  shop,  and  was  asked  by 
the  barber  how  he  wanted  his  hair  cut,  he  answered,  ' '  In 
silence."  How  that  great  philosopher  would  have  been 
delighted  to  see  one  of  our  slot  machines  that  attends 


Changes  in  the  Law  and  Its  Practice    271 

strictly  to  business,  that  "scorns  delights,  and  lives 
laborious  days,"  that  fulfills  its  functions  with  uniform 
politeness,  and  is  silent  on  principle  in  all  languages, 
and  under  every  kind  of  provocation,  as  when  buttons 
take  the  place  of  coins.  These  ingenious  machines  typify 
our  age  so  well  that  probably  they  have  a  brilliant 
future.  At  present  they  are  only  selling  machines ;  but 
it  cannot  be  long,  apparently,  before  we  shall  have  buy- 
ing machines  constructed  on  the  same  principle ;  so  that 
all  of  the  commerce  of  the  world  shall  be  carried  on 
silently  without  human  interruption. 

The  banker  of  to-day  throws  his  arithmetic  into  the 
waste  basket,  turns  his  accounts  over  to  a  machine,  and 
forces  Old  Father  Time,  our  most  inveterate  and  our 
supreme  enemy,  to  lay  down  his  scythe  every  morning  at 
a  prescribed  moment,  and  to  open  his  safe. 

Music  was  once  intimately  associated  with  poetry  and 
oratory ;  but  now  we  have  many  machines  that  will  auto- 
matically reel  it  out  to  us  by  the  yard.  It  is  true  that 
there  is  something  grim,  ghastly  and  sacrilegious  in  these 
machines,  blind  as  a  bat,  deaf  as  a  post,  sitting  in  eternal 
darkness,  spitting  out  music  that  they  cannot  hear,  falsely 
pretending  to  have  a  human  soul;  and  that  they  are 
hardly  as  attractive  as  the  beaming  Lesbia  with  her 
lyre,  or  even  the 

"Abyssinian  maid 
Playing  on  a  dulcimer." 

Still  we  must  recognize  them,  and  give  them  the  right 
of  domicil. 

We  sit  before  a  phonograph  that  records  every  word 
that  we  utter  on  a  tablet  that  no  man  can  read ;  but  the 
same  machine,  or  any  other  of  like  construction,  will 
read  it  for  us,  reproducing  every  intonation  of  the  voice 
with  absolute  fidelity.  One  of  these  tablets  may  bring 
back  to  us  the  voice  of  a  friend  long  since  dead,  as  if  in 


272  Addresses 

a  message  from  the  grave ;  and  so  the  spoken  voice,  once 
deemed  the  most  distinctively  personal  and  ephemeral  of 
all  attributes,  may  survive  for  centuries  after  the  man 
himself  has  perished.  We  cannot  recall  the  "touch  of  a 
vanished  hand, ' '  but  we  can  reproduce 

"The  sound  of  a  voice  that  is  still." 

By  sitting  before  an  X-ray  machine  we  can  strip  our- 
selves of  ' '  this  too  solid  flesh, ' '  and  admire  the  beauty  of 
our  own  skeletons;  and  thus  anticipate  the  dissolving 
spell  of  death. 

And  now  Marconi  tells  us  that  he  will  soon  teach  the 
vagrant  winds  to  blow  our  voices  alike  through  sunshine 
and  storm  across  vast  leagues  of  intervening  sea,  regard- 
less of  ships  that  sail  or  sink,  with  no  syllable  lost  or 
damaged  in  transit. 

We  have  long  since  called  down  Jove 's  dread  lightning 
to  forward  our  messages  with  flying  wings,  to  toil  in 
our  workshops,  to  carry  us  on  our  errands;  to  light  up 
the  domestic  hearth;  to  sit  as  a  silent  watcher  by  the 
child  that  sleeps  in  the  cradle  hard  by. 

Having  emancipated  the  slaves,  we  are  about  to  free 
the  horse  from  his  long  and  bitter  servitude.  Moreover, 
Santos-Dumont  is  coming  across  the  seas  like  another 
Lafayette,  to  enlarge  the  area  of  our  liberties ;  to  eman- 
cipate the  automobile  that  emancipates  the  horse,  to  teach 
us  to  skim  over  the  house-tops  and  to  revel  among  the 
clouds.  These  amazing  creations,  and  ten  thousand 
others  hardly  less  marvelous,  not  a  few  as  yet  unknown, 
will  soon  be  exhibited  in  your  city,  such  a  collection  as 
has  never  been  seen  before;  peaceable  and  fraternal 
groups  of  strange  devices,  things  that  war  not  on  each 
other,  successors  of  ante-diluvian  monsters  that  perished 
ages  ago  in  the  slime  of  an  unfinished  world — are  the 
elves,  the  fairies  and  the  goblins  of  our  modern  mythol- 
ogy ;  but  they  lend  no  aid  to  the  fervor  of  poetry  or  the 


Changes  in  the  Law  and  Its  Practice    273 

splendor  of  eloquence.  They  will  talk  for  us,  they  will 
sing  for  us,  they  will  write  for  us,  they  will  fly  for  us, 
they  will  turn  night  into  day  for  us,  and  will  outwatch 
the  stars,  but  they  lack  that  "one  touch  of  nature  that 
makes  the  whole  world  kin."  In  their  unsympathetic 
presence  the  Fourth  of  July  orator,  whose  vocation  it 
was  to  exhibit  the  proud  bird  of  freedom  in  all  sorts  of 
impossible  attitudes,  grows  sad  and  despondent,  the  poet 
resolves  to  give  away  his  rhyming  dictionary,  and  they 
walk  off  arm  in  arm,  each  knowing  that  his  occupation  is 
gone. 

Science  has  extended  over  the  early  history  of  our 
world  a  scrutinizing  glance  that  has  dispelled  many 
pleasant  illusions.  How  can  we  boast  of  our  ancestors 
when  the  scientists  tell  us  that  our  somewhat  remote 
ancestors  lived  in  treetops ;  that  it  is  from  them  that  we 
derive  our  beautiful  love  of  trees,  and  groves  and  for- 
ests; and  that  what  seems  the  genius  and  inspiration 
of  the  finest  landscape  painter  is  only  an  inherited 
approximation  to  Nature  which  most  of  their  descend- 
ants have  unfortunately  lost? 

We  are  like  a  soldier  in  a  long  campaign.  At  first  he 
carries  in  his  knapsack  many  conveniences,  and  some 
articles  even  for  personal  adornment;  but  after  many 
battles  and  many  a  weary  march  he  dispenses  with 
everything  that  is  not  strictly  necessary. 

On  the  whole  it  does  not  seem  likely  that  the  forensic 
orator  will  ever  come  back ;  and  it  is  highly  probable  that 
if  Cicero  should  return  fifty  years  hence,  and  begin 
again  his  "Quousque  Catalina,"  the  people  would  rise 
up  and  cut  his  head  off  the  second  time. 

I  do  not  mean  to  say,  however,  that  eloquence  is 
wholly  dead.  There  is  still  an  oasis  in  the  desert  where 
the  birds  still  sing  as  in  the  olden  time.  It  generally 
happens  that  at  a  banquet  of  kindred  spirits — marked  by 
the  sympathy  that  waits  on  friendly  intercourse — when 


274  Addresses 

the  cares  of  life  are  for  the  moment  laid  aside,  speeches 
are  made  that  do  credit  to  the  glowing  traditions  of 
former  years;  but  I  have  always  observed  that  such 
speeches  never  come  from  invited  guests,  but  that  they 
invariably  emanate  from  those  "to  the  manner  born." 

I  never  come  to  your  city  or  pass  through  it  without 
recalling  what  Charles  Dickens  said  when  he  was  here 
in  1842.  The  town  then  had  a  population  of  about  20,- 
000,  and  the  novelist  said  that  some  persons  prophesied 
that  it  would  be  a  large  city  some  day ;  but  that  he  did 
not  think  that  it  could  ever  rival  Cincinnati.  The 
growth  of  your  city  has  outrun  the  expectation  of  the 
most  sanguine;  and  its  future  seems  now  far  more 
splendid  and  promising  than  ever  before.  You  are  soon 
to  have  a  World's  Fair,  intended  to  celebrate  the  cession 
of  Louisiana,  one  of  the  greatest  events  in  human  his- 
tory; one  that  doubled  the  territory  of  our  native  land, 
and  made  this  city,  the  queen  of  all  that  vast  domain,  a 
possibility.  Moreover  you  are  to  have  a  conference  of 
eminent  jurists  from  all  parts  of  the  world,  in  a  spot 
rendered  appropriate  by  a  long  line  of  most  distin- 
guished lawyers  and  judges  that  have  illuminated  the 
history  of  the  bar,  many  of  whom  still  survive,  and  we 
hope  may  long  survive,  to  illustrate  all  of  the  noblest 
qualities  that  go  to  make  up  the  highest  types  of  our 
profession.  The  celebration  will  be  worthy  of  the  event 
commemorated,  and  of  a  progress  that  obscures  all  past 
examples  and  furnishes  an  inspiration  for  the  centuries 
to  come. 

The  fraternal  feeling  that  prevails  at  the  bar  has 
always  been  remarked  with  admiration  by  intelligent  men 
without  its  pale.  It  forms  the  solace  that  compensates 
for  a  pursuit  that  involves  toil  the  most  severe,  perse- 
verence  the  most  unremitting,  and  responsibilities  the 
most  serious.  You  of  the  Alumni  of  the  same  fostering 
mother  are  bound  by  an  additional  tie  that,  formed  in 


Changes  in  the  Law  and  Its  Practice    275 

the  springtime  of  life,  is  commonly  found  to  be  one  of 
the  most  delightful  and  one  of  the  most  enduring;  and 
I  feel  that  it  is  owing  to  a  superfluity  of  charity  and 
good  will  thus  engendered  that  I  am  indebted  for  the 
distinguished  honor  that  you  have  conferred  in  inviting 
me  to  be  a  guest  at  your  hospitable  board,  burdened  and 
adorned  with  everything  that  can  delight  the  senses, 
enhanced  and  glorified  by  your  good  company.  I  should 
be  less  than  a  man  if  I  was  not  deeply  sensible  of  your 
kindness ;  I  should  be  more  than  a  man  if  I  could  respond 
to  it  in  adequate  and  appropriate  language.  I  can  only 
throw  myself  on  your  indulgence,  and  beg  that  you  will 
graciously  give  me  the  benefit  of  the  rule  in  chancery 
which  considers  that  as  done  which  ought  to  be  done. 


TRIAL  BY  JURY  IN  FRANCE 

Address  Before  the  Missouri  Bar  Association,  May  4,  1900 


TRIAL  BY  JURY  IN  FRANCE 

In  responding  to  the  invitation  with  which  you  have 
so  highly  honored  me  I  have  thought  it  not  improper 
to  select  for  my  subject  "Trial  by  Jury  in  France," 
which  I  believe  has  at  least  the  merit  of  being  by  no 
means  hackneyed,  since  I  have  not  been  able  to  find, 
either  in  French  or  English,  a  consecutive  account  of 
the  origin  and  development  of  trial  by  jury  in  that 
country ;  hence  the  information  that  I  have  obtained  on 
the  subject  has  been  derived  from  a  considerable  variety 
of  sources.    It  forms,  I  think,  rather  a  curious  story. 

Horace  tells  us  that  they  who  cross  the  sea  only  change 
their  horizon^  and  not  themselves;  but  this  is  not  the 
case  with  institutions;  for  they  often  undergo  funda- 
mental changes  in  crossing  an  invisible  boundary  line. 
It  will  be  seen  that  trial  by  jury  in  France  is  a  very 
different  thing  from  trial  by  jury  in  England  and  in  our 
own  country. 

Trial  by  jury,  as  we  all  know,  is  of  great  antiquity. 
Under  different  forms  it  has  found  a  place  amonc  many 
races  and  peoples.  It  was  not  unknown  to  the  Normans ; 
but  it  took  no  root  in  the  French  soil.  As  it  exists  now 
in  France  it  is  an  exotic,  borrowed  consciously  and 
directly  from  England,  where  it  has  been  domiciled,  has 
prospered,  and  has  borne  fruit  for  centuries. 

The  mutual  antipathy  that  has  so  long  subsisted 
between  the  French  and  the  English  peoples  probably 
dates  from  the  time  of  the  Teutonic  conquest  of  Eng- 
land. Perhaps  no  invasion  has  ever  been  attended  with 
more  savage  brutality.  The  Saxons  proceeded  to  exter- 
minate the  native  population  without  pity,  and  without 
compunction.    The  handful  of  Britons  who  succeeded  in 

279 


280  Addresses 

making  their  escape  across  the  channel  to  join  their 
brother  Celts  in  what  is  now  called  Brittany,  had  a 
terrible  story  to  tell  of  the  massacre  of  nearly  a  whole 
Christian  people  by  ferocious  heathen  hordes,  who  wor- 
shipped the  mythical  gods  of  the  North  with  unholy 
rites ;  a  story  that  thrilled  Christendom  with  horror  and 
detestation.  France,  which  was  so  near  to  the  scene 
of  this  dreadful  catastrophe,  must  have  been  profoundly 
shocked  and  awe-stricken.  The  sentiment  of  aversion 
thus  kindled,  fanned  by  incessant  wars,  increased  during 
the  succeeding  centuries,  until  the  national  animosity 
became  rancorous  and  implacable  to  the  last  degree.  To 
the  Frenchman  the  Englishman  became  what  the 
Samaritan  was  to  the  Jew,  what  the  Russian  is  to  the 
Pole;  so  that  he  rarely  mentioned  the  name  of  Albion 
without  the  qualifying  epithet  of  "the  perfidious." 

Owing  to  this  keen  hostility  England  remained  almost 
a  terra  incognita  to  the  great  body  of  the  French  people 
until  the  eighteenth  century,  when  it  may  be  said  to  have 
been  discovered  by  Voltaire  and  Montesquieu.  Voltaire 
spent  about  three  years  in  England,  returning  home  in 
1729  enamored  with  English  institutions,  and  profoundly 
impressed  with  the  advantages  attending  trial  by  jury. 
A  few  months  after  his  return  Montesquieu  went  to 
England,  where  he  stayed  about  a  year  and  a  half, 
engaged  in  a  very  discriminating  study  of  the  English 
government.  He  easily  perceived  that,  as  he  afterwards 
said,  England  was  the  freest  country  on  the  earth,  her 
people  the  happiest ;  that  while  France  had  for  more  than 
a  century  been  sinking  deeper  and  deeper  into  poverty 
and  ignorance,  her  neighbor  and  rival  had  increased  in 
something  like  the  same  ratio  in  intelligence  and  wealth. 
Thus  it  was  that  these  two  great  writers,  like  the  Israel- 
ites that  spied  out  the  land  of  Canaan,  brought  back  a 
good  report,  which  was  soon  disseminated  throughout 
France. 


Trial  by  Jury  in  France  281 

After  the  close  of  the  American  Revolution  the  French 
people  were  much  elated  by  the  thought  that  they  had 
lent  a  helping  hand  in  the  work  of  dismembering  the 
British  empire,  and  that  they  had  secured  a  permanent 
ally  far  across  the  briny  seas.  They  felt  that  they  had 
broken  the  prestige  of  the  perfidious  Albion;  and  that 
they  had  humbled  her  pride.  Many  thought  that  she 
could  never  again  claim  to  be  a  first  class  power.  The 
stain  of  Crecy  and  Agincourt  had  been  washed  away  at 
Yorktown;  and  under  such  circumstances  France  could 
afford  to  be  generous  to  a  fallen  foe.  For  the  first  and 
the  only  time  anglomania  seized  upon  the  people,  or  at 
least  upon  the  higher  classes.  English  clubs,  English 
horse-races  and  English  jockeys,  English  dress  and  man- 
ners, were  eagerly  copied  with  that  sudden  enthusiasm 
which  marks  the  Gallic  temperament.  Montesquieu's 
Spirit  of  the  Laws  had  awakened  interest  in  the  study 
of  comparative  jurisprudence;  and  had  even  made  it 
fashionable  in  the  salons  of  Paris,  where  ladies  talked 
knowingly  of  the  laws  of  the  ancient  Persians  and 
Thracians. 

The  first  volume  of  Blackstone's  Commentaries  on  the 
Laws  of  England  was  published  in  1765,  and  the  last 
volume  came  out  four  years  later.  The  idea  of  writing 
this  work  was  no  doubt  suggested  by  Domat's  great 
treatise  on  the  Civil  Law,  to  the  plan  of  which  Blackstone 
adhered  at  least  so  far  as  to  endeavor  to  unfold  the  mys- 
teries of  jurisprudence  in  such  terms  as  might  bring 
them  within  the  comprehension  of  the  inquiring  and 
thoughtful  layman.  When  the  States-General  were 
called  to  meet  some  months  after  at  Versailles  in  1789 
Blackstone's  Commentaries  were  eagerly  perused  by 
many  who  aspired  to  play  a  political  part  in  the  national 
affairs  of  France,  as  well  as  by  others  of  their  fellow 
subjects  of  enlightened  intelligence;  and  English  insti- 


282  Addresses 

tutions  came  to  be  studied  and  searched  for  models  for 
practical  legislation. 

Soon  after  the  meeting  of  the  States-General  it  called 
itself  the  National  Assembly;  but  it  is  now  generally 
known  by  the  more  distinctive  name  of  the  Constituent 
Assembly.  Readers  of  general  history  are  apt  to  think 
that  this  body  was  made  up  altogether  of  remarkable 
orators  after  the  order  of  Mirabeau — who  stood  at  the 
head  of  the  list — of  noisy,  turbulent  politicians,  and  of 
political  enthusiasts  and  fanatics.  But  that  is  a  serious 
mistake;  for  among  the  varied  and  heterogeneous  ele- 
ments of  the  time  and  place  were  to  be  found  a  consider- 
able body  of  learned  and  accomplished  jurists,  who  at 
once  went  to  work  laboriously  to  reform  the  laws,  which 
were  in  a  most  chaotic  condition.  The  result  does  honor 
to  their  discrimination,  their  ability,  and  their  patriot- 
ism. They  reorganized  the  courts,  prepared  a  criminal 
code,  and  introduced  various  reforms  which  still  survive 
after  many  vicissitudes  and  revolutions. 

Naturally  the  question  of  trial  by  jury  came  before 
the  Assembly,  because  it  recommends  itself  to  thinking 
men  who  know  anything  of  its  history,  and  because  it 
was  conceded  that  the  existing  system  of  trying  accused 
persons  before  judges  in  secret,  where  the  accused  was 
denied  the  benefit  of  counsel,  had  proved  an  ignominious 
failure.  The  champion  of  trial  by  jury  was  Adrien 
Duport,  a  lawyer  of  Paris,  and  a  deputy  of  the  noblesse, 
a  young  man  remarkable  for  learning  and  for  talents. 
After  much  discussion  trial  by  jury  was  adopted  by  a 
large  majority  of  votes.  Then  the  question  arose :  Shall 
trial  by  jury  extend  to  civil  cases  ? 

It  was  objected  that  many  civil  cases  were  too  complex 
to  be  submitted  to  a  jury ;  a  difficulty  that  was  obviated 
in  England,  where  cases  of  that  sort  generally  found 
their  way  into  the  court  of  chancery ;  an  expedient  not 
admissible  in  France,  where  the  distinction  between  law 


Trial  by  Jury  in  France  283 

and  equity  was  unknown.  It  was  decided  that  trial  by- 
jury  should  be  confined  to  criminal  cases. 

The  next  question  was  whether  verdicts  of  juries 
should  be  required  to  be  unanimous.  There  was  a  very 
obscure  deputy  there,  known  but  to  few;  a  small  lean 
man,  dressed  in  the  costume  of  a  dandy  of  the  period, 
with  his  hair  carefully  dressed  and  powdered.  His 
features  were  small  and  irregular,  his  forehead  retreat- 
ing, his  eyes  of  a  dull,  tarnished  brown,  utterly  void  of 
expression,  his  complexion  pallid.  When  he  talked  or 
spoke  he  had  a  habit  of  grimacing  like  a  cat  that  has 
caught  a  whiff  of  Scotch  snuff.  His  appearance  was  spec- 
tral and  enigmatical,  formal,  precise,  angular  and 
pedantic;  his  voice  was  shrill,  his  gestures  sudden  and 
ungraceful.  An  observant  stranger  would  probably  have 
taken  him  for  a  village  schoolmaster  dressed  up  for  a 
holiday.  He  had  gotten  up  several  times  to  speak;  but 
after  a  few  words  he  had  been  coughed  down  and 
silenced,  for  the  Assembly  was  not  able  to  take  him 
seriously.  He  had  seemingly  not  the  slightest  qualifi- 
cation for  playing  the  part  of  a  demagogue;  while  he 
had  what  would  seem  to  be  a  positive  disqualification 
for  leadership  in  times  of  revolution;  for  he  was,  as  it 
afterwards  appeared,  timid  and  cowardly ;  yet  in  a  few 
years  he  was  to  be  the  idol  of  the  people,  was  to  rule 
France  with  a  power  never  possessed  by  any  of  her 
kings,  and  was  to  exhibit  the  lowest  depth  of  degradation 
to  which  trial  by  jury  has  ever  been  subjected.  His 
name  was  Maxmilien  Robespierre,  a  lawyer  and  a 
deputy  from  the  sleepy  old  provincial  town  of  Arras.  A 
sworn  disciple  of  Rousseau,  he  was  now  a  humanitarian 
of  the  most  advanced  type,  deeply  and  sternly  opposed 
to  capital  punishment ;  and  was  overflowing  with  benevo- 
lent sentiments  in  general. 

It  was  now  for  the  first  time  that  the  future  leader  of 
the  Jacobins  got  a  chance  to  address  the  Assembly  for  a 


284  Addresses 

few  minutes.  He  said  that  it  was  revolting  to  think  that 
a  citizen  might  be  subjected  to  punishment  on  a  divided 
vote.  Minorities  were  often  right,  and  majorities  wrong. 
The  English  system  was  the  true  one.  He  proposed, 
moreover,  that  the  jury  should  be  authorized  to  acquit 
though  the  evidence  established  the  defendant's  guilt; 
thus  vesting  the  pardoning  power  in  the  jury.  This 
was  his  first  bid  for  an  alliance  with  the  criminal  classes. 

Much  discussion  followed,  during  which  Duport  made 
the  very  shrewd  remark  that  the  English  law  did  not 
necessarily  result  in  unanimous  verdicts.  Juries  were 
forced  to  render  verdicts  by  starvation,  and  by  being 
deprived  of  water,  of  fire,  and  of  lights.  If,  under  this 
pressure,  the  minority  went  over  to  the  majority  there 
was  a  majority  verdict ;  if  the  majority  went  over  to  the 
minority,  then  there  was  a  minority  verdict.  After  very 
full  discussion  it  was  resolved  that  a  majority  of  the  jury 
should  suffice  for  rendering  a  verdict  of  conviction,  and 
that  where  the  jury  were  equally  divided  the  accused 
should  be  acquitted. 

The  Assembly  also  adopted  the  English  grand  jury 
system,  the  members  of  which  were  chosen  after  a  very 
complex  manner;  one  of  the  judges  of  the  criminal 
assize  being  deputed  to  act  as  foreman.  During  the 
consulate  the  grand  jury  was  abolished;  and  since  that 
time  indictments  are  found  by  one  of  the  chambers  of 
the  court  having  criminal  jurisdiction,  on  written  testi- 
mony taken  before  the  examining  court,  or  on  special 
commission. 

Petit  jurors  were  to  have  a  small  property  qualifica- 
tion. Bankrupts  and  persons  on  wages  were  disqualified. 
Every  three  months  an  officer  called  the  procureur  syndic 
was  to  select  200  competent  jurors,  subject  to  the 
approval  of  the  departmental  directory ;  and  from  these 
the  trial  jury  was  to  be  drawn  by  lot.     It  consisted  of 


Trial  by  Jury  in  France  285 

twelve  jurors  and  three  adjuncts.  The  oath  was  similar 
to  that  used  in  the  English  courts.  The  adjuncts  sat 
apart  from  the  regular  panel,  but  heard  all  of  the  evi- 
dence. The  state  and  the  defendant  had  twenty  per- 
emptory challenges  each.  Challenges  for  cause  were  not 
allowed.  All  trials  were  to  be  in  public,  and  the  accused 
was  to  have  the  benefit  of  counsel,  who  were  required 
as  a  preliminary  step  to  swear  that  they  would  employ 
nothing  but  the  truth  as  a  means  of  defense.  In  cases 
requiring  special  knowledge  of  any  art  or  science  the 
court  might  order  a  jury  of  experts. 

Counsel  for  defense  had  the  right  to  open  and  conclude 
the  argument ;  and  then  the  presiding  judge  summed  up 
according  to  the  English  practice.  Counsel  on  either 
side  might  submit  any  questions  bearing  on  the  case  to 
the  jury  for  answers  to  be  returned  with  their  general 
verdict;  a  privilege  that  was  much  abused.  In  a  single 
case  more  than  6,000  questions  were  thus  submitted. 

The  jury  consulted  in  seclusion;  but  the  verdict  was 
made  up  at  chambers  in  the  presence  of  the  presiding 
judge,  the  clerk  of  the  court,  and  an  executive  officer 
called  the  royal  commissioner.  The  foreman  of  the  jury, 
that  is,  the  first  person  on  the  list,  entered  alone,  and 
found  two  ballot  boxes,  one  black  and  one  white,  to 
receive  the  vote  on  the  general  question  of  guilt  or  inno- 
cence. A  black  ball  in  a  black  box  meant  yes,  while  a 
white  ball  in  a  white  box  meant  no.  Similar  boxes  were 
provided  for  answering  the  separate  questions  if  the 
defendant  was  found  guilty  on  a  general  ballot.  Each 
question  was  read  by  the  judge,  copies  of  it  in  writing 
were  laid  on  the  boxes,  and  the  answer  was  given  in 
the  same  way  as  to  the  general  question. 

After  casting  his  votes  the  foreman  remained  in  the 
room ;  the  other  jurors  came  in  one  by  one  and  cast  their 
votes,  and  went  out.    Upon  counting  the  votes  a  written 


286  Addresses 

certificate  of  the  result  was  prepared  and  signed  by  the 
persons  present,  the  court  reassembled,  and  the  foreman 
in  open  court  announced  the  verdict. 

In  case  all  of  the  judges  were  convinced  that  the  jury 
had  fallen  into  some  fatal  error,  the  three  adjunct 
jurors  were  added  to  the  panel ;  the  new  jury,  now  com- 
posed of  fifteen  jurors,  retired  to  consider  of  their  ver- 
dict; and  then  it  required  the  concurrence  of  twelve 
to  warrant  a  conviction. 

On  the  return  of  a  verdict  against  the  accused  the 
judges  consulted  as  to  the  penalty  in  their  chambers; 
but  they  were  required  to  express  their  opinions  in  open 
court,  beginning  with  the  youngest.  The  sentence  was 
suspended  for  three  days,  during  which  the  crown  might 
appeal.  In  case  of  reversal  the  cause  was  sent  back  for 
trial  before  a  different  court  from  that  in  which  the 
first  trial  was  had. 

By  a  later  law,  passed  in  1795,  it  was  provided  that 
the  jury  should  be  kept  in  seclusion  for  twenty-four 
hours  after  their  retirement,  unless  in  the  meantime  they 
agreed  on  a  unanimous  verdict.  If  they  failed  to  agree 
within  that  time  a  majority  verdict  might  be  returned; 
but  this  law  after  a  few  years  was  repealed. 

The  practice  of  submitting  special  questions  to  the 
jury  to  be  answered  by  each  juror  separately  did  not 
work  well  in  practice.  In  search  of  simplicity  and  pre- 
cision, the  law-making  power  had  by  an  excess  of  pre- 
caution developed  a  wonderfully  complex  system. 
Jurors  who  could  pass  intelligently  on  the  question  of 
the  guilt  or  innocence  of  the  defendant  could  not  always 
analyze  the  steps  by  which  their  conclusion  was  reached ; 
hence  their  answers  were  often  contradictory.  Thus  a 
man  was  indicted  for  forgery.  The  French  law,  like 
our  own,  requires  as  a  necessary  element  of  the  crime 
that  the  act  shall  have  been  committed  with  the  intent 
to  injure  or  defraud  some  third  person.     The  evidence 


Trial  by  Jury  in  France  287 

in  the  case  was  plain,  and  the  jury  returned  a  general 
verdict  of  guilty.  One  of  the  questions  was,  "Did  the 
defendant  commit  the  act  with  the  intent  to  injure  or 

defraud    ?"    to    which    the    jury    unanimously 

answered  no.  Of  course,  the  defendant  had  to  be  dis- 
charged. On'  being  asked  how  the  negative  answer  came 
to  be  given,  one  of  the  jurors  said :  ' '  We  knew  the  man 
was  guilty;  but  we  did  not  think  he  had  committed  the 
act  with  the  intent  to  injure  anyone  else.  We  thought 
that  he  was  trying  to  benefit  himself.' ' 

In  1807  the  law  was  changed  so  as  to  allow  the  court 
to  limit  the  number  of  special  questions  ^o  be  asked.  At 
present  generally  none  are  asked;  but  sometimes  the 
privilege  is  still  abused.  In  the  same  year  another  law 
was  enacted  that  when  the  jury  returned  a  majority 
verdict,  if  a  majority  of  the  judges  thought  that  it  was 
wrong  they  could  vote  with  the  jurors,  and  if  the 
majority  of  the  judges  and  the  minority  of  the  jurors 
exceeded  in  number  the  majority  of  the  jurors  and  the 
minority  of  the  judges  the  verdict  was  reversed.  This 
law  long  remained  in  force ;  but  was  afterwards  repealed. 

By  law  of  April  28,  1852,  it  is  provided  that  if  a 
majority  of  a  jury  convict  they  may  find  that  the  act 
was  committed  with  extenuating  circumstances ;  and  this 
finding  has  the  effect  to  reduce  the  punishment  one 
degree ;  and  then  the  court  may  of  its  own  motion  reduce 
it  an  additional  degree. 

We  must  now  go  back  to  the  Napoleonic  era.  In  order 
to  understand  the  working  of  the  system  of  trial  by  jury 
during  the  Consulate  and  the  Empire  it  will  be  necessary 
to  consider  the  form  of  government  that  came  in  with  the 
Consulate.  The  Constitution  of  1799  was  the  work  of 
the  Abbe  Siey&s  as  changed  and  modified  by  Napoleon. 
Sieyes  had  long  regarded  himself  as  endowed  with  spe- 
cial talents  for  concocting  constitutions  for  the  govern- 
ment of  nations;  and  he  certainly  produced  one  of  the 


288  Addresses 

most  singular  schemes  of  which  history  gives  any  account. 
"Whatever  its  merits  or  demerits  may  have  been,  all  of 
its  provisions,  with  the  single  exception  of  that  relating 
to  trial  by  jury  in  cases  of  felony,  were  rendered  utterly 
nugatory  by  the  changes  introduced  by  Napoleon.  The 
sequel  shows  in  a  very  strong  light  that  trial  by  jury  is 
a  formidable  barrier  against  the  exercise  of  arbitrary 
power,  though  it  may  not  be  insurmountable. 

The  executive  power  was  wholly  vested  in  the  First 
Consul.  The  second  and  third  consuls  might  consult 
with  him ;  but  they  had  no  vote.  They  were  only  added 
for  scenic  effect;  mere  foot-hills  to  break  the  austere 
heights  of  Chimborazo.  The  legislative  power  was  vested 
in  what  was  called  the  Tribunate  or  Lower  House  and 
the  Corps  Legislatif  or  Legislative  Body  answering  to 
our  Senate.  The  members  of  both  these  bodies  were 
appointed  by  what  was  called  the  Conservative  Senate. 
The  Tribunate  consisted  of  100  members,  the  Legislative 
Body  of  300.  One-fifth  in  number  of  each  was  renewed 
annually  by  the  Senate;  but  no  change  was  to  be  made 
during  the  next  ten  years.  They  held  their  meetings 
publicly ;  but  not  more  than  200  spectators  were  allowed 
to  be  present  in  either  body  at  one  time.  Then  there 
was  a  Council  of  State,  a  sort  of  ministry,  or  cabinet, 
as  we  should  call  it,  only  much  more  numerous.  Its 
members  were  appointed  and  removable  at  the  will  of 
the  First  Consul.  The  Senate  was  a  very  anomalous 
body  which  held  its  sessions  in  secret,  like  the  Council  of 
Ten  in  Venice.  It  had  no  legislative  functions;  but,  as 
we  have  seen,  appointed  all  of  the  members  of  the  legis- 
lative bodies.  It  appointed  consuls  in  case  of  vacancy, 
and  also  the  Judges  of  the  Court  of  Cassation,  the 
highest  court  in  what  was  called  the  republic,  and  the 
Commissioners  of  Accounts.  All  other  officers,  except 
justices  of  the  peace,  were  appointed  by  the  First  Con- 
sul.   The  Senate,  composed  of  80  members,  perpetuated 


Trial  by  Jury  in  France  289 

itself  by  filling  all  vacancies  occurring  in  its  body.  There 
were  elaborate  provisions  for  registration  of  voters ;  but 
they  elected  no  officers  except  justices  of  the  peace. 

The  manner  of  passing  a  law  was  as  follows :  The  bill 
was  prepared  by  the  Council  of  State,  and  was  then 
submitted  to  the  Tribunate,  where  it  was  discussed.  If 
approved  and  passed  it  was  sent  to  the  Legislative  Body, 
with  three  members  of  the  Tribunate,  who  were  also 
members  of  the  Council  of  State,  as  "orators"  to  advo- 
cate the  passage  of  the  measure.  The  Legislative  Body 
discussed  nothing.  It  was  dumb.  The  theory  of  Siey&s 
was  that  debate  in  legislative  assemblies  heats  the  pas- 
sions, and  deprives  the  members  of  that  judicial  frame 
of  mind  necessary  to  safe  legislation.  The  members  of 
the  legislative  body  silently  voted  by  secret  ballot. 

If  the  bill  was  duly  passed  both  by  the  Tribunate  and 
the  Legislative  Body  it  did  not  still  become  a  law  unless 
promulgated  by  the  First  Consul.  Supposing  it  to  have 
passed  through  all  of  these  stages,  the  Senate,  under  cir- 
cumstances that  would  probably  never  happen,  might 
have  a  duty  to  perform  with  regard  to  it.  If  called  on 
by  the  Council  of  State  or  the  Tribunate  it  had  power 
to  pronounce  the  law  void  as  in  conflict  with  the  Con- 
stitution. But  after  the  Council  of  State  had  prepared 
the  law,  and  the  Tribunate  had  approved  it,  and  had 
sent  "orators"  to  the  Legislative  Body  to  advocate  it, 
it  was  not  probable  that  either  of  them  would  attack  it 
as  being  unconstitutional.  The  first  senators  were 
appointed  by  Si  eyes  and  Roger  Ducos.  It  is  needless  to 
say  that  in  making  the  selection  they  acted  under  the 
direction  of  Napoleon. 

The  consuls  were  to  hold  office  for  ten  years ;  but  Citi- 
zen Bonaparte,  Citizen  Cambacer&s  and  Citizen  LeBrun 
were  appointed  to  fill  the  offices  of  first,  second  and  third 
consuls  respectively  for  five  years. 

Evidently  the  whole  power  was  vested  in  the  First 


290  Addresses 

Consul.  His  Council  of  State,  whose  members  were 
appointed  by  him  and  removable  at  will,  was  only  his 
creature.  No  bill  could  be  presented  for  legislative 
action  that  he  did  not  approve,  and  he  had  an  absolute 
veto  of  every  bill  that  was  passed.  The  Senate  was 
made  up  of  his  appointees ;  and  it  created  the  legislature 
and  kept  it  alive.  The  First  Consul  appointed  all  officers 
except  justices  of  the  peace  and  those  that  were  appointed 
by  the  Senate.  The  Senate,  in  filling  vacancies  in  its  own 
body,  could  only  choose  between  one  candidate  presented 
by  the  legislative  body,  another  presented  by  the  Tribu- 
nate, and  the  third  by  the  First  Consul;  but  if  they 
agreed  on  the  same  candidate  the  Senate  had  no  choice 
but  to  elect  him.  To  suppose  that  the  Senate  in  any 
case  would  disregard  the  secret  wishes  of  the  First  Con- 
sul by  whom  it  was  created  would  be  to  indulge  in  a 
freak  of  the  imagination. 

In  his  youth  Napoleon  had  cherished  the  most  mag- 
nificent vision  that  ever  dawned  on  the  mind  of  man  in 
modern  times.  He  purposed  to  follow  in  the  footsteps 
of  Alexander,  to  conquer  the  Orient,  and  to  establish 
among  the  ruins  of  Egypt,  Persia,  Arabia,  Syria,  Meso- 
potamia, and  perhaps  in  Asia  Minor  and  India,  such  an 
empire  as  had  not  been  seen  for  more  than  2,000  years. 
He  believed  that  whatever  the  Macedonian  phalanx  had 
achieved  the  French  legion  could  accomplish.  Alexan- 
der, being  an  absolute  monarch,  could  keep  his  own 
secrets ;  but  in  order  to  get  the  approval  of  the  Directory 
to  his  scheme,  Napoleon  was  forced  to  say  that  his  expe- 
dition was  intended  for  the  destruction  of  the  English 
power  in  India.  The  Directory  were  indeed  not  very 
hard  to  persuade.  They  were  glad  to  see  this  aspiring 
young  man  exile  himself  to  the  ends  of  the  earth;  and 
they  would  not  have  been  sorry  afterwards  to  learn  that 
he  had  perished  on  the  Nile,  or  that  he  had  been  laid  to 
rest  on  the  banks  of  the  Euphrates. 


Trial  by  Jury  in  France  291 

England  having  got  wind  of  this  scheme,  did  not 
approve  it;  but  sent  out  her  dogs  of  war  to  Egypt  and 
Syria  to  sink  the  ships  of  Napoleon  at  Aboukir  and  to 
stay  his  march  at  Acre.  His  return  from  Egypt  was 
but  a  prelude  to  his  retreat  from  Moscow.  From  the 
moment  that  he  saw  his  oriental  dream  collapse,  he  swore 
eternal  enmity  to  England.  It  became  the  ruling  passion 
of  his  life ;  and  finally  led  to  his  overthrow.  As  he  hated 
all  things  English,  he  hated  trial  by  jury  because  it  was 
English.  He  hated  it,  also,  because  it  provoked  public 
discussion.  Though  fond  of  consulting  with  retired 
jurists,  he  hated  all  practicing  lawyers,  because  in  try- 
ing causes  they  could  not  be  restrained  from  indulging 
in  criticisms  on  the  laws,  the  government,  and  things  in 
general ;  a  license  which  was  not  in  accord  with  the  fun- 
damental principles  of  his  system.  Besides,  he  knew  as 
a  historical  fact  that  lawyers  had  always  been  opposed 
to  despotism.  The  guaranty  of  trial  by  jury  had  been 
put  in  the  Constitution  as  a  tub  thrown  to  the  popular 
whale;  but  the  institution  was  extremely  odious  to  the 
First  Consul;  and  he  soon  began  to  look  out  for  some 
way  to  get  rid  of  it. 

During  the  feeble  and  inefficient  government  of  the 
Directory,  the  bonds  of  the  law  were  loosened,  and 
crime  prevailed  to  an  alarming  extent.  In  the  year  1800, 
the  country  was  infested  by  bands  of  robbers  and  foot- 
burners  (chauffeurs) ,  so  that  in  the  villages  and  country 
districts  there  was  but  little  security  for  either  life  or 
property.  For  this  crying  evil  some  remedy  had  to  be 
found;  and  the  slow  process  of  trial  by  jury  hardly 
seemed  adequate  to  the  emergency.  During  the  Revolu- 
tion two  statutes  had  been  passed  directed  against 
Chouans  and  other  guerillas  acting  in  hostility  to  the 
government,  which  enacted  that  they  might  be  tried  and 
condemned  by  courts  martial.  These  statutes  had  never 
had  any  application  to  persons  not  engaged  in  rebellion ; 


292  Addresses 

and  the  trial  by  jury  of  civilians,  whether  robbers  or  not, 
was  expressly  guaranteed  by  the  Constitution.  Never- 
theless, under  pretended  authority  of  these  laws,  which 
had  undoubtedly  been  repealed  by  the  Constitution, 
armed  troops  were  sent  out  to  patrol  the  country,  result- 
ing in  the  arrest  of  many  robbers,  who  met  with  very 
summary  punishment  at  the  hands  of  military  tribunals 
improvised  as  occasion  seemed  to  require.  That  these 
proceedings  were  founded  in  usurpation  there  is  no 
room  for  doubt;  but  the  crimes  thus  punished  had 
become  so  numerous  and  flagrant  that  this  summary  pro- 
ceeding met  with  general  approval;  though  there  were 
not  a  few  that  criticized  the  act,  seeing  in  it,  as  they 
declared,  the  thin  edge  of  the  wedge  of  despotism. 

Hardly  had  this  housecleaning  been  completed  when 
Paris  and  all  of  France  were  startled  by  the  news  that 
Arena  and  Ceracchi  had  conspired  with  others  to  assas- 
sinate the  First  Consul.  Napoleon  at  once  called  the 
Council  of  State  together.  He  was  transported  with 
one  of  those  fits  of  fury  to  which  he  was  subject,  and 
which  he  sometimes  feigned. 

"Blood  will  be  required,"  he  said.  "There  are  in 
Paris  and  throughout  France  four  or  five  hundred  indi- 
viduals covered  with  crimes,  enemies  of  society  at  large ; 
a  handful  of  mad  wolves.  Twenty  or  thirty  of  them 
must  die,  and  the  rest  of  them  must  be  sent  to  prison 
in  the  colonies. ' ' 

But  the  Council  of  State  were  much  embarrassed. 
The  accused  certainly  were  not  Chouans  or  guerillas. 
The  government  had  just  got  into  the  saddle,  and  it  had 
many  enemies.  The  Royalist  party  was  strong  in  mem- 
bers and  in  influence.  Returning  home — when  permitted 
to  return — the  emigres  found  their  estates  confiscated, 
and  their  families  reduced  to  poverty  and  want.  Their 
chateaux,  hallowed  by  ancestral  memories,  were  burnt; 
or  what  was  worse,  were  occupied  by  parvenus,  who 


Trial  by  Jury  in  France  293 

during  the  Revolution  had  grown  rich  out  of  the  mis- 
fortunes of  their  country.  With  their  ancient  preju- 
dices the  noblesse  could  not  easily  adapt  themselves  to 
new  conditions.  They  were  embittered,  sullen,  unrecon- 
ciled. The  Jacobins  had  declined;  but  the  race  was  by 
no  means  extinct;  and  revolution  was  their  trade.  It 
was  known  that  some  of  the  officers  of  the  army  were 
more  or  less  disaffected.  The  upshot  was  that  Napoleon 
reluctantly  consented  to  have  the  conspirators  tried  by 
jury.    They  were  thus  tried,  convicted,  and  executed. 

The  First  Consul,  however,  continued  to  be  very  much 
hampered  by  the  obnoxious  clause  of  the  Constitution; 
and  at  every  meeting  of  the  Council  of  State  he  recurred 
to  the  hateful  subject.  When  it  was  under  discussion 
on  the  second  day  of  January,  1801,  the  wily  Talleyrand 
made  a  suggestion  to  Napoleon  that  had  not  occurred 
to  anyone  else.  He  asked:  "What  is  the  Senate  for 
unless  you  make  use  of  it  ? ' ' 

Never  was  a  suggestion  more  hospitably  received.  It 
was  to  Napoleon  like  a  brilliant  sunbeam  breaking  sud- 
denly and  unexpectedly  through  a  dark  cloud.  He  knew 
that  the  Roman  Senate  in  cases  of  emergency  would 
sometimes  issue  a  senatus  consultum;  that  at  first  the 
senatus  consultum  was  only  advisory;  but  that  in  the 
course  of  time  such  documents  came  to  have  the  force 
of  laws  that  were  valid  until  repealed. 

There  was  no  resemblance  between  the  ancient  Roman 
Senate  and  that  of  France  except  the  name.  But  if, 
on  the  application  of  the  First  Consul,  the  Senate  should 
issue  any  kind  of  document  called  a  senatus  consultum 
who  would  question  its  constitutionality?  No  one  could 
do  so  except  the  Council  of  State  or  the  Tribunate ;  and 
it  was  certain  that  neither  of  them  would  take  that  step. 
No  one  could  decide  on  the  constitutionality  of  any  pro- 
ceeding except  the  Senate ;  and  it  might  be  relied  on  not 
to  invalidate  one  of  its  own  acts.    Talleyrand  had  indeed 


294  Addresses 

discovered  a  northwest  passage  that  obviated  all  dangers 
and  difficulties.  Two  days  after  his  suggestion  was  made 
the  First  Consul,  under  a  senatus  consultum,  sent  to 
prison  in  the  colonies  thirty  citizens  who  had  not  been 
tried  by  jury  or  in  any  other  way.  One  of  these  was 
Sechelles,  one  of  the  greatest  scoundrels  that  had  ever 
cheated  the  gallows  of  its  prey;  another  was  Fournier, 
who  had  murdered  the  prisoners  of  Orleans  at  Versailles, 
and  who  called  himself  "the  American"  because  he  had 
spent  some  years  in  St.  Domingo;  and  another  was 
Rossignol,  who  had  dabbled  in  many  crimes  for  which 
he  had  never  been  punished,  and  was  now  punished  for 
crimes  that  he  had  never  committed.  The  guilt  of  sev- 
eral of  the  prisoners,  however,  seems  to  have  consisted 
in  expressing  a  very  decided  preference  for  a  republican 
form  of  government. 

Napoleon  was  not  content  to  have  his  power  of  dis- 
pensing with  juries  dribbled  out  to  him  to  meet  special 
exigencies  as  occasion  might  require;  he  wished  to  have 
it  understood  that  the  obstruction  itself  was  removed, 
so  that  military  trials  might  deter  as  well  as  punish. 
He  therefore  submitted  to  the  Council  of  State  a  propo- 
sition that  the  Senate  be  requested  to  issue  a  senatus 
consultum  authorizing  the  First  Consul  to  suspend  trial 
by  jury  in  any  department  as  he  should  find  it  necessary 
for  the  public  good.  The  Council  of  State  easily  con- 
sented. But  in  taking  a  step  that  was  sure  to  be  severely 
criticized,  it  was  thought  wise  to  secure  the  co-operation 
of  the  Tribunate;  and  there  an  unexpected  opposition 
was  manifested.  The  institution  thus  assailed  was 
extremely  popular  in  France ;  so  much  so  that  it  required 
a  good  deal  of  courage  or  a  good  deal  of  subserviency 
to  oppose  it. 

The  friends  of  the  measure  said  that  it  was  only 
intended  as  a  temporary  expedient  "so  that  Hercules 
might  clean  out  the  Augean  stable;  and  that  as  soon  as 


Trial  by  Jury  in  France  295 

existing  bands  of  murderers  were  exterminated,  jury 
trial  would  be  restored." 

Duveyrier  expressed  the  greatest  admiration  for  trial 
by  jury ;  but  in  order  to  save  it  from  destruction  he  said 
that  it  should  not  be  put  on  tasks  too  difficult  for  its 
strength.  Its  real  utility  consisted  in  its  power  to  punish 
ordinary  offenses ;  but  when  it  came  to  cases  of  assassina- 
tion, arson,  and  other  great  crimes,  more  sudden  and 
sternly  repressive  measures  were  required. 

Francois  de  Nantes,  who  was  evidently  speaking  for 
Bonaparte,  ridiculed  trial  by  jury  under  existing  cir- 
cumstances. "Enough  of  metaphysics,"  he  said.  "Can 
you  deny  that  if  you  bring  before  juries  the  robbers 
who  daily  attack  public  conveyances,  and  kill  soldiers 
and  citizens,  their  impunity  is  almost  assured  either  by 
the  vices  of  the  jury  system  or  by  the  terror  inspired  by 
these  hordes  of  wandering  brigands?  The  foot-burners 
laugh  at  jurors,  who  either  acquit  them  or  refuse  to  go 
to  court,  preferring  to  pay  a  small  fine  rather  than  to 
expose  themselves  to  robbery  on  the  highways."  This 
was  all  very  disingenuous,  because  the  measure  was  not 
confined  to  robbers  and  murderers. 

Chenier,  Ginguene,  Isnard  and  Benjamin  Constant 
opposed  the  measure  with  vigor;  but  it  was  adopted  by 
a  small  majority  on  the  seventh  of  February,  1801.  But 
this  authority  to  suspend  trial  by  jury  in  individual 
cases  was  still  unsatisfactory.  By  a  senatus  consultum 
of  August  4,  1802,  the  First  Consul  was  authorized  to 
suspend  trial  by  jury  for  five  years  in  any  department ; 
a  privilege  which  he  afterwards  often  asserted  and 
abused. 

If  Napoleon  was  hostile  to  juries  he  had  no  respect  for 
their  verdicts.  By  a  law  of  October  12,  1791,  it  was 
provided  that  charges  of  certain  offenses  committed  on 
the  high  seas  should  be  tried  by  jury.  In  1802  a  sub- 
lieutenant was  tried  at  Brest  under  this  law,  and  was 


296  Addresses 

acquitted.  By  order  of  the  First  Consul  the  jurors  were 
all  arrested,  sent  to  Paris,  and  imprisoned  for  some  time 
on  the  ground  that  "their  verdict  constituted  an  act  of 
rebellion  against  the  Constitution."  Two  of  the  jurors 
thus  imprisoned  had  voted  for  conviction. 

Very  much  to  the  discontent  of  Napoleon,  the  legis- 
lative section  of  the  Council  of  State  entrusted  with  the 
work  of  preparing  a  draft  of  a  criminal  code  in  1801, 
•inserted  provisions  regulating  trial  by  jury.  He  was 
determined  to  have  these  expunged.  He  easily  found 
allies.  Some  of  the  judges  declared  that  trial  by  jury 
had  proved  a  failure ;  that  public  trials  were  only  schools 
for  crime;  and  that  the  old-fashioned  secret  trials  were 
attended  with  much  better  results. 

In  order  to  fortify  himself  against  opposition, 
Napoleon  invited  the  judges  of  the  Court  of  Cassation 
to  call  on  him  in  a  body.  Though  he  was  not  yet 
emperor,  he  received  them  in  royal  style,  his  grand 
justiciary  (grand  juge),  Regnier,  clad  in  purple  robes, 
being  in  attendance.  The  judges  of  the  court  were 
asked  whether  in  their  opinion  trial  by  jury  should  be 
continued.  The  president,  speaking  for  the  court,  as  his 
custom  was,  expressed  his  distrust  of  the  institution 
in  moderate  terms,  intimating  that  if  it  was  to  be  pre- 
served it  should  be  changed  in  various  particulars. 

The  grand  justiciary  was  more  emphatic.  He  wound 
up  by  saying  that  "juries  were  so  profoundly  ignorant 
and  stupid  that  they  had  no  conscience. ' '  The  minister 
of  justice  then  pronounced  a  florid  eulogy  on  the  special 
military  tribunals  which  had  been  organized,  and  which 
had  performed  their  labors  with  vigor  and  dispatch  with- 
out being  fettered  by  jurors. 

The  conspiracy  of  George  Cadoudal  in  1804,  brought 
about  a  sudden  crisis.  In  February  of  that  year  Paris 
was  astounded  to  learn  that  Moreau,  the  hero  of  Hohen- 
linden,  and  Pichegru  had  been  arrested  and  thrown  into 


Trial  by  Jury  in  France  297 

prison.  Soon  afterwards  Cadoudal  was  captured.  By 
a  senatus  consultum  trial  by  jury  was  suspended  in  the 
department  of  the  Seine.  One  event  followed  another 
with  startling  rapidity.  On  the  twenty-first  of  March 
the  Duke  d'Enghien  was  murdered  at  Versailles  by 
Napoleon  through  the  agency  of  a  sham  military  tri- 
bunal. In  May  the  First  Consul  assumed  the  imperial 
crown. 

A  single  event  often  produces  a  thorough  and  radical 
change  of  character;  a  fact  that  we  sometimes  perceive 
as  the  result  of  a  great  bereavement,  or  the  sudden  acqui- 
sition or  loss  of  fortune.  Under  such  circumstances  the 
mental  and  moral  nature  often  undergo  a  change  beyond 
recognition;  but  that  which  brings  about  the  most  sud- 
den and  thorough  transformation  is  the  commission  of  a 
great  crime.  It  is  that  which  breaks  the  bonds  of  fellow- 
ship that  bind  us  to  our  fellow  men.  It  was  that  which 
made  Cain  a  wanderer  on  the  face  of  the  earth.  We  are 
told  that  after  Alexander  in  a  moment  of  passion  had 
slain  with  his  own  hand  Cliton,  the  friend  of  his  boy- 
hood, the  nephew  of  his  great  teacher,  Aristotle,  who  had 
diligently  prepared  him  for  the  giant  course  that  he  was 
to  run,  it  was  remarked  that  the  spontaneous  and  over- 
flowing spirit  of  kindliness  and  affection  which  distin- 
guished him  in  his  youth  suffered  an  eclipse;  and  that 
it  was  succeeded  by  a  certain  hardness  of  tone,  a  reserve, 
a  wilfulness,  obstinacy  and  self  assertion  which  pre- 
viously he  had  never  manifested. 

From  the  time  of  the  arrest  of  the  Duke  d'Enghien, 
Napoleon  became  more  and  more  arbitrary  and  intolerant 
of  opposition,  more  companionless  and  solitary.  He  was 
fitly  described  by  an  Irish  orator  as  "a  sceptred  hermit, 
wrapped  in  the  solitude  of  his  own  originality."  Was 
this  change  due  to  the  separating  sense  of  a  great  crime 
committed?  Under  favorable  conditions  nothing  grows 
so  rapidly  as  the  spirit  of  despotism,  which  of  itself  also 


298  Addresses 

tends  to  isolation.  Either  of  these  influences  might 
account  for  the  result.  When  taken  together  no  further 
explanation  is  needed. 

It  has  been  said  that  all  great  men  are  actors ;  but  this 
is  not  true.  There  have  been  many  great  men  who  were 
not  actors,  and  who  could  not  have  made  actors  of 
themselves  if  they  had  tried  ever  so  much.  But  it  was 
eminently  true  of  Napoleon.  Bourienne,  who  had  known 
him  from  boyhood,  and  had  often  heard  him  read  and 
declaim,  said  that  in  the  art  of  acting  Napoleon  could 
have  given  lessons  to  Talma  himself.  In  the  preceding 
years  of  the  consulate  he  never  appeared  so  charming 
as  when  in  conference  with  committees  formed  of  his 
official  advisers.  Sitting  carelessly  on  an  article  of  fur- 
niture, his  short  legs  not  touching  the  floor,  engaged 
mechanically  in  sharpening  a  pencil,  kindly  deferential 
to  all  who  were  present,  talking  with  the  artlessness  of 
a  school  boy,  but  with  the  wisdom  of  a  sage,  this  con- 
queror who  had  filled  the  world  with  his  fame  impressed 
his  views  on  his  counselors  with  a  kind  of  fascination 
that  was  almost  irresistible. 

Though  Moreau  and  Pichegru  were  sent  before  a  mili- 
tary tribunal,  yet  the  trial  dragged  along  at  what  seemed 
to  Napoleon  to  be  a  shamefully  slow  pace.  The  case  of 
Moreau  in  particular  excited  unfavorable  comment. 
Many  thought  that  the  murder  of  the  Duke  d'Enghien 
was  only  the  prologue  to  extensive  proscriptions.  The 
exasperation  of  Napoleon  under  these  circumstances  was 
intense. 

Four  days  after  the  proclamation  of  the  empire, 
Napoleon  called  together  the  legislative  section  of  the 
Council  of  State  and  asked  them  to  finish  the  prepara- 
tion of  the  criminal  code,  on  which  nothing  had  been 
done  for  three  years.  He  suggested  that  a  fortnight 
would  be  enough  for  the  completion  of  the  task,  though 


Trial  by  Jury  in  France  299 

really  nothing  of  any  consequence  had  been  previously 
accomplished.  His  demeanor  was  not  what  it  had  for- 
merly been. 

The  emperor  of  1804  was  not  the  consul  of  1799.  He 
no  longer  resorted  to  the  talents  of  persuasion  and  con- 
ciliation with  which  he  had  been  so  prodigally  endowed 
by  nature.  He  was  still  an  actor;  but  he  was  now 
resolved  to  confine  himself  to  the  leading  parts  in  great 
tragedies,  which  he  endeavored  to  render  more  impres- 
sively by  the  assertion  that  he  was  under  the  spell  of 
some  invincible  destiny.  He  made  a  vacancy  around  him ; 
and  in  his  imperial  loneliness  he  already  anticipated  the 
seclusion  of  Longwood  and  the  desolation  of  St.  Helena. 

When  the  newly  crowned  emperor  entered  the  cham- 
ber of  the  Council  of  State  he  was  in  a  frowning  mood. 
He  had  made  up  his  mind  that  it  was  easier  to  drive 
men  than  to  persuade  or  convince  them.  The  blandish- 
ments with  which  he  had  formerly  smoothed  over  or 
vanquished  difficulties  were  laid  aside  as  so  much  cast- 
off  clothing.  In  respect  of  these  he  may  be  said  to  have 
abdicated  on  assuming  the  sceptre  of  royalty.  He  began 
at  once  to  talk  about  the  trial  of  the  Moreau  case,  and 
to  abuse  lawyers. 

"It  is  the  license  of  the  lawyers,"  he  said,  "that  hin- 
ders the  judges  and  retards  the  prosecution." 

"Has  not  one  of  them  dared  to  pronounce  publicly  a 
eulogy  on  the  Count  d  'Artois  ?  This  is  the  kind  of  thing 
that  saps  the  foundation  of  governments.  What  would 
have  been  the  result  if  the  case  had  been  left  to  a  jury, 
a  mere  bauble  in  the  hands  of  lawyers?  Juries  nearly 
always  absolve  the  guilty.  If  a  criminal  has  money 
enough  to  hire  a  lawyer  no  jury  will  ever  convict  him. 
England  knows  that;  and  if  she  still  retains  trial  by 
jury,  it  is  less  as  a  judicial  than  a  political  institution; 
it  is  only  a  guaranty  against  the  power  of  the  crown. 


300  Addresses 

But  does  anyone  imagine  that  a  tyrant  would  have  any 
slighter  hold  on  juries  than  on  judges  holding  office  for 
life?" 

It  would  seem  tnat  with  the  Senate  to  issue  a  senatus 
consultum  to  suspend  trial  by  jury  at  any  time,  and  for 
any  period  desired,  Napoleon  would  have  been  satisfied; 
but  he  was  not  usually  content  with  partial  victories. 
Besides,  he  did  not  like  to  be  asking  the  Senate  for  favors. 
It  looked  as  if  he  belonged  to  that  body;  whereas,  it 
belonged  to  him. 

As  soon  as  the  emperor  had  ceased  to  speak,  Portalis, 
Bigot  de  Preameneu  and  Cambaceres  severally  made 
elaborate  arguments  in  favor  of  the  abolition  of  trial  by 
jury  as  something  incompatible  with  the  empire.  Evi- 
dently they  had  known  what  was  coming,  and  had  pre- 
pared themselves  accordingly.  But  while  they  were 
talking  the  friends  of  trial  by  jury  had  time  to  collect 
their  thoughts.  Berlier  made  a  bold  and  powerful 
speech,  concluding  by  saying  that ' '  it  was  fortunate  that 
the  reaction  did  not  go  so  far  as  to  revive  the  barbarous 
ordinances  which  forbade  public  trials  and  the  right  of 
defense  to  accused  persons."  He  was  followed  by  Reg- 
naud,  St.  Jean  D  'Angely,  Def ermon,  Berenger  and  Treil- 
hard  in  speeches  so  vigorous  that  they  made  an  impres- 
sion on  the  emperor  himself. 

There  was  a  momentary  lull  when  one  who  sat  very 
near  the  newly  erected  throne  arose,  and  said  that  he 
fully  approved  of  everything  that  had  been  said  by  M. 
Treilhard;  that  he  had  always  heard  it  said  that  the 
jury  was  one  of  the  principal  benefits  that  the  people 
had  gained  by  the  Revolution;  and  that  it  was  one  of 
the  surest  guaranties  of  liberty.  He  might  have  added 
that  of  all  the  trophies  of  the  Revolution,  that  had  cost 
so  many  tears  and  so  much  blood,  this  was  the  only  thing 
left.  The  speaker  was  the  high  constable,  Prince  Louis 
Bonaparte. 


Trial  by  Jury  in  France  301 

A  vote  was  taken  on  the  question, ' '  Shall  trial  by  jury- 
be  abolished?"  and  a  majority  of  the  Council  voted  in 
the  negative.  As  soon  as  the  result  was  announced 
Napoleon  declared  the  meeting  dissolved,  and  retired 
with  evident  dissatisfaction.  But  he  did  not  rest  here. 
With  his  usual  tenacity  of  purpose,  he  called  the  Council 
together  again  in  three  or  four  stormy  sessions;  but  in 
vain ;  the  friends  of  trial  by  jury  stood  manfully  in  the 
breach,  exhibiting  a  good  deal  of  courage;  for  the 
emperor  was  generally  very  prompt  to  punish  any 
adviser  who  thwarted  his  will  by  deprivation  of  office, 
if  in  no  other  way.  At  the  last  meeting  in  which  the 
subject  was  discussed  the  grand  justiciary  made  another 
appeal  in  opposition  to  the  jury  system,  declaring  that 
it  had  given  nothing  but  bad  results.  "Let  us  reform 
it,  then,"  exclaimed  Treilhard.  "I  am  only  surprised 
that  it  works  as  well  as  it  does  when  it  is  constantly 
attacked  by  the  grand  justiciary." 

Napoleon  was  so  greatly  offended  by  the  result  that  he 
ceased  to  attend  the  meetings  of  the  Council.  At  that 
time  he  was  enraged  by  the  light  punishment  of  two 
years'  imprisonment  inflicted  on  Moreau.  While  the 
trial  was  going  on  he  caused  word  to  be  conveyed  to  the 
military  judges  that  he  would  expect  Moreau  to  be 
condemned  to  death;  but  that  he  would  pardon  him. 
"But  who  will  pardon  us  in  the  eyes  of  posterity?" 
exclaimed  one  of  the  judges.  When  the  judgment  was 
announced  to  Napoleon,  he  said :  ' '  They  have  given  him 
the  punishment  usually  inflicted  on  a  thief  that  steals 
a  pocket  handkerchief."  Finding,  soon  afterwards,  at 
St.  Cloud,  one  of  the  judges,  Lecourbe,  who  had  voted 
for  the  acquittal  of  Moreau,  he  exclaimed  in  a  fit  of 
anger,  "Get  out  of  my  sight,  prevaricating  judge."  He 
suspended  the  preparation  of  the  criminal  code;  and 
work  was  not  resumed  on  it  for  nearly  four  years.  It 
was  finally  completed;  but  by  its  provisions  trial  by 


302  Addresses 

jury  was  reduced  to  a  mere  shadow.  By  law  of  April  20, 
1810,  special  courts  were  established,  composed  of  eight 
judges  each,  with  authority  to  try  persons  accused  of 
ordinary  offenses  without  juries  whenever  the  emperor 
should  so  direct. 

It  may  seem  curious  that  in  all  of  these  discussions  no 
reference  was  made  to  the  constitutional  guaranty.  The 
explanation  is  that  constitutions  did  not  count  for  much. 
From  1791  to  1799  three  constitutions  had  been  con- 
trived, and  had  been  successively  overturned  just  as  if 
they  had  been  paper  screens;  hence  the  Constitution  of 
1799  was  regarded  at  most  as  being  mildly  persuasive, 
something  like  our  political  platforms.  It  was  supposed 
to  partake  of  ancestral  debility ;  and  the  hectic  flush  was 
already  on  its  cheek. 

I  must  close  this  account  of  trial  by  jury  under  Napo- 
leon by  a  very  sad  story. 

In  1811,  it  being  reported  to  him  that  gross  frauds  had 
been  committed  on  the  revenue  service  at  Antwerp,  he 
at  once  ordered  the  arrest  of  Werbrouck,  the  mayor  of 
the  city,  a  very  old  man,  and  a  very  wealthy  citizen, 
who  was  universally  esteemed.  For  various  reasons  the 
trial  was  put  off  until  July,  1813,  when  it  took  place  at 
Brussels.  The  accused  was  defended  by  Berryer,  the 
leader  of  the  French  bar,  and  a  man  of  very  high  char- 
acter. In  his  memoirs  he  gives  an  account  of  the  trial 
at  Brussels,  the  truthfulness  of  which  is  not  questioned. 
The  defendant  came  into  court  with  sixty-four  of  his 
children  and  grandchildren.  The  evidence  failed  to  con- 
nect him  with  the  peculations  that  had  been  committed. 
At  most  it  only  showed  that  the  defendant,  partly  from 
the  effects  of  old  age,  and  partly  from  a  temperament 
that  was  too  indulgent  and  confiding,  had  not  exercised 
all  of  that  vigilance  and  scrutiny  that  after  events 
showed  were  needed.     The  jury  was  composed  largely 


Trial  by  Jury  in  France  303 

of  French  officials,  and  the  trial  resulted  in  an  acquittal, 
which  was  greeted  with  universal  acclamation.  Napoleon 
was  then  at  Dresden.  As  soon  as  he  heard  of  the  verdict 
he  wrote  an  angry  letter,  recently  published,  to  Regnier, 
who  was  now  called  the  Duke  of  Massa,  declaring  that 
the  verdict  was  a  nullity,  directing  that  the  solicitor 
general  should  present  to  the  Senate  for  approval  a 
senatus  consultum  cancelling  the  verdict  and  judgment 
of  acquittal,  so  that  "this  matter  be  sent  to  our  Court  of 
Cassation,  which  will  designate  an  imperial  court  in 
which  the  case  shall  be  tried  before  a  full  chamber  with- 
out the  intervention  of  a  jury. ' '  It  was  not  quite  certain 
that  this  program  could  be  carried  out  with  the  celerity 
which  the  emperor  desired. 

The  president  of  the  criminal  section  of  the  Court  of 
Cassation,  M.  Barris,  on  being  interviewed  on  the  sub- 
ject, declared  that  under  no  pretext  would  he  vary  from 
the  rules  of  law  applicable  in  such  cases;  and  that  his 
colleagues  were  animated  by  the  same  resolution.  The 
Senate,  however,  displayed  its  usual  servility.  It  dis- 
pensed with  the  reference  to  the  Court  of  Cassation.  It 
annulled  the  verdict  and  judgment  as  "being  an  attack 
on  the  safety  of  the  State, ' '  and  sent  the  case  for  retrial 
to  the  court  at  Douai  without  the  embarrassment  of  a 
jury.  In  the  meantime  the  venerable  defendant  had  been 
sent  back  to  prison,  where,  worn  out  with  humiliation 
and  anxiety,  he  died  on  the  eleventh  day  of  December, 
1813,  not  long  before  the  emperor's  abdication. 

It  may  be  that  men  of  the  genius  of  Alexander,  of 
Caesar  and  Napoleon,  with  their  preternaturally  keen 
insight,  their  rapid  powers  of  generalization  and  com- 
bination, seeing  their  fellow  men  hesitating  and  floun- 
dering over  propositions  which  to  them  are  self  evident, 
come  to  look  on  them  as  constituting  a  sort  of  lower  order 
of  being,  exiles  from  the  pale  of  sympathy.    It  is  not 


304  Addresses 

probable  that  on  the  rare  occasions  when  they  visit  the 
earth  they  will  be  very  enthusiastic  champions  of  trial 
by  jury*  or  of  any  other  kind  of  restraint. 

After  all,  when  society  becomes  thoroughly  disorgan- 
ized despotism  is  nature's  remedy,  the  only  antidote 
against  anarchy  and  universal  destruction.  The  rule  of 
Napoleon  was  a  despotism  pure  and  simple;  and  on  the 
whole  it  must  be  said  that  it  was  better  than  most  gov- 
ernments of  its  class.  Under  the  Constitution  of  1799, 
there  was  no  balance  of  power.  The  Senate  was  a  fifth 
wheel  to  the  governmental  chariot.  As  it  could  pro- 
nounce no  law  unconstitutional  except  on  the  demand  of 
the  very  men  who  had  made  the  law,  it  was  necessarily 
condemned  to  perpetual  impotence.  It  was  farther 
weakened  by  the  disinterment  by  Talleyrand  out  of  the 
Pompeii  of  history  of  the  Roman  senatus  considtum.  It 
became  simply  an  obsequious  slave ;  and  it  preserved  its 
despicable  qualities  to  the  last.  It  signed  the  decree 
deposing  the  emperor,  addressed  fulsome  eulogy  to  Louis 
XVIII.,  and  reached  the  lowest  level  of  self  contempt 
by  denouncing  Napoleon  for  his  conduct  in  the  Wer- 
brouck  case,  and  for  having  "usurped  and  confounded 
all  the  functions  of  government,  and  destroyed  the  inde- 
pendence of  the  judiciary." 

It  is  much  easier  to  account  for  the  failures  of  Napo- 
leon than  it  is  to  account  for  his  success.  Many  who 
have  made  a  careful  study  of  his  career  in  all  of  its 
phases  have  been  of  the  opinion  that  his  genius  for  civil 
government  surpassed  his  genius  for  war.  Louis  XIV. 
waged  great  wars,  and  left  France  exhausted  and  pov- 
erty-stricken. Napoleon  waged  still  greater  wars,  and 
left  France  rich  and  prosperous.  It  was  said  of 
Augustus  that  he  found  Rome  built  of  brick,  and  left  it 
built  of  marble.  Napoleon  embellished  France  far 
beyond  the  dreams  of  the  past. 

Of  course  there  was  a  terrible  reverse  to  this  medal. 


Trial  by  Jury  in  France  305 

Every  year  he  offered  up  tens  of  thousands  of  the  youth 
of  the  country  on  the  altar  of  his  personal  ambition. 
He  called  his  soldiers  his  children;  but  he  practiced 
infanticide  without  truce  and  without  measure.  Respond- 
ing to  the  trumpet  call  these  children  saluted  the  reign- 
ing Caesar,  stained  the  vast  arena  of  war  with  their 
life  blood,  and  continued  their  march  into  the  shadowy 
realms  of  the  unknown ;  dying  without  even  the  empty 
reward  of  fame.  They  were,  notwithstanding  all  endear- 
ing expressions,  to  use  the  sarcastic  epithet  of  Falstaff, 
only  ' '  food  for  powder. ' ' 

One  would  have  thought  that  with  his  continual 
marches  and  battles  Napoleon  could  have  given  but  little 
thought  to  civil  administration;  but  there  was  no  time 
when  he  did  not  keep  himself  perfectly  acquainted  with 
every  detail  which  it  involved.  Under  the  coercive  hand 
of  the  master  all  of  the  departments  of  the  government, 
down  to  the  smallest  pin  and  cog-wheel,  moved  with  the 
unerring  precision  of  finished  mechanism.  "When  he  fell 
and  the  ancient  reign  of  dullness  and  mediocrity 
resumed  its  sway,  men  felt  as  if  some  newly  discovered 
but  powerful  law  of  nature  had  ceased  to  operate,  or  as 
if  one  of  the  world's  hemispheres  had  been  wrenched 
away  and  lost  in  space. 

His  government  had  been  the  reign  of  law;  but  that 
law  had  its  origin  and  its  application  in  the  will  of  a 
single  man.  Toward  the  end  of  his  career  the  imperial 
despotism  was  unconcealed  and  complete.  Like  Louis 
XIV.,  Napoleon  could  say,  "I  am  the  State;"  and  like 
Louis,  he  issued  lettres  de  cachet  right  and  left  as  seemed 
to  him  best,  though  he  did  not  call  them  by  that  name. 
Here  is  the  form  of  one  of  them,  if  you  ever  have  occa- 
sion to  use  anything  of  the  sort: 

"Dresden,  August  6,  1813. 
"To  General  Savary,  Duke  of  Rovigo,  General  Minister  of  Police: 
"As  the  director  of  the  ecclesiastical   seminary  at  Gand  pro- 


306  Addresses 

fesses  rather  bad  principles,  have  him  arrested  and  imprisoned 
in  one  of  the  government  prisons  so  that  no  one  shall  know 
where  he  is." 

"Napoleon." 

It  may  be  added,  on  the  other  hand,  that  Napoleon 
conferred  on  the  legal  profession,  on  the  courts,  and  on 
the  country  an  incalculable  benefit  that  no  one  but  a 
despot  could  have  conferred.  He  wiped  out  all  of  the 
customary  laws  which  made  a  confusion  worse  con- 
founded, the  like  of  which  has  never  been  known  before 
or  since,  and  replaced  them  by  a  code  prepared  by 
learned  and  able  jurists ;  thus  marking  the  most  decided 
advance  in  jurisprudence  that  had  been  known  since  the 
days  of  Justinian.  It  still  remains  the  most  illustrious 
and  the  most  enduring  of  his  works. 

Trial  by  jury  in  France  having  assumed  a  somewhat 
definite  form,  has  undergone  but  few  changes  during  the 
century  which  is  now  drawing  to  a  close.  It  is  only 
resorted  to  in  cases  of  felony,  cases  of  libel  and  other 
offenses  of  the  press,  and  in  cases  where  there  is  a  con- 
troversy growing  out  of  the  law  of  eminent  domain. 
The  Court  of  First  Instance,  commonly  called  the  Court 
of  Assize,  is  the  special  habitat  of  the  jury. 

The  French  jury  is  the  product  of  a  somewhat  elabo- 
rate system  of  selection.  To  state  the  matter  briefly, 
jurors  are  chosen  by  boards  of  local  officers  of  each 
canton,  who  make  out  a  list,  which  is  deposited  with  the 
clerk  of  a  local  court  for  public  inspection.  After  a  delay 
intended  to  give  time  for  objections,  the  list,  with  all 
written  objections  that  have  been  made  to  it,  is  sent  to 
another  board  of  higher  officials  for  revision.  The  num- 
ber of  jurors  depends  on  the  population  of  the  territory 
over  which  the  Court  of  Assize  has  jurisdiction.  All 
male  citizens  over  thirty  and  under  sixty  years  of  age  are 
qualified  to  serve ;  but  as  all  who  are  dependent  on  man- 
ual and  daily  labor  for  support  are  excused,  their  names 


Trial  by  Jury  in  France  307 

are  omitted  from  the  list,  which  in  Paris  contains  several 
hundred.  These  are  put  into  a  box,  from  which  forty 
are  drawn  for  each  session  of  the  court.  Their  names 
are  put  into  an  urn,  and  are  drawn  out  one  by  one  by 
the  presiding  judge.  The  prosecution  and  the  defense 
have  each  twelve  challenges.  The  first  twelve  unchal- 
lenged jurors  form  the  panel,  and  the  juror  whose  name 
is  first  drawn  acts  as  foreman. 

The  court  is  something  very  different  from  any  with 
which  we  are  familiar.  It  consists  of  six  or  eight,  or  even 
more  judges ;  but  as  the  officers  of  the  parquet  or  minis- 
tere  publique,  that  is,  official  members  of  the  bar, 
solicitors-general  and  advocates-general,  representing  the 
government,  sit  on  the  bench  with  the  judges,  distin- 
guishable only  by  slight  difference  in  the  cut  of  their 
robes,  a  visitor  unacquainted  with  the  organization  of 
the  courts  would  naturally  suppose  that  the  judges  are 
more  numerous  than  they  are.  These  officers  of  the 
parquet  not  only  represent  the  government  in  criminal 
cases,  but  they  may  intervene  in  civil  cases  wherever 
they  think  that  public  morals  are  involved,  or  the  pro- 
tection of  persons  laboring  under  disabilities  is  required. 
They  form  the  class  from  which  the  judges  of  the  courts 
are  usually  selected;  hence  they  may  be  regarded  as 
candidates  for  judgeships  in  embryo.  They  are  quite 
distinct  from  the  order  of  practicing  advocates.  "When 
during  the  trial  the  judges  retire  for  consultation,  these 
officers  go  with  them,  just  as  the  judge  advocate  does 
with  us  in  courts  martial. 

The  principal  duties  in  conducting  a  trial  by  jury  fall 
on  the  presiding  judge,  called  the  president,  who  is  not 
a  judge  of  the  Court  of  Assize,  but  is  a  member  of  the 
civil  chamber  of  the  Court  of  Appeal  deputed  to  preside 
in  the  Court  of  Assize  for  the  period  of  one  year.  The 
oath  of  the  jury  is  very  similar  to  that  used  in  England. 

Few  things  can  be  more  interesting  than  a  French 


308  Addresses 

trial  by  jury  in  a  case  which  excites  public  interest  or 
curiosity.  It  seems  to  be  a  travesty  on  trial  by  jury 
as  it  is  known  to  us.  The  president  is  the  principal 
prosecutor;  and  as  for  rules  of  evidence  they  may  be 
classified  along  with  the  snakes  in  Ireland:  there  are 
none. 

After  the  jury  have  been  sworn,  and  a  brief  opening 
for  the  prosecution  and  the  defense,  the  trial  begins 
with  the  examination  of  the  accused  by  the  president. 
This  is  a  moment  of  the  deepest  interest.  The  president 
is  admirably  qualified  to  enter  on  the  duel  that  is  about 
to  ensue.  Evidence  has  been  taken  in  writing  before 
the  examining  court,  giving  the  fullest  possible  account 
of  the  prisoner's  whole  life  as  far  as  it  could  be  gleaned 
from  positive  evidence  and  hearsay  or  rumor  of  any 
kind.  Proof  has  been  thus  adduced  of  all  improper  acts 
ever  charged  on  the  prisoner  by  gossip  or  malice,  or  in 
any  other  way.  The  theory  is  that  whatever  tends  to 
show  that  he  is  a  bad  man  will  render  it  more  probable 
that  he  has  committed  the  particular  crime  with  which 
he  is  charged.  The  president  has  been  furnished  by 
the  prosecution  with  a  careful  abstract  of  the  evidence, 
and  a  brief,  showing  the  strong  points  against  the 
accused.  Hence  the  judge  is  armed  and  equipped  for 
the  contest.  He  begins  by  recapitulating  all  of  the  sins, 
real  or  imputed,  of  the  prisoner  committed  during  a 
whole  lifetime.  A  stranger  not  familiar  with  the  pro- 
ceeding might  suppose  that  he  was  listening  to  a  trial 
before  Radamanthus  and  his  fellow  judges  in  the  shades 
below,  summing  up  the  offenses  and  shortcomings  of 
some  poor  and  perplexed  spirit  recently  consigned  from 
the  upper  world.  As  a  specimen  of  this  kind  of  exordium 
I  will  take  the  opening  of  the  examination  in  the  Court 
of  Assize  at  Evreux  in  the  case  of  Caillard,  tried  a  few 
months  ago.    The  accused  was  indicted  for  having  miir- 


Trial  by  Jury  in  France  309 

dered  six  persons,  and  for  having  stolen  two  rabbits. 
The  president  began  thus: 

"In  the  morning  of  the  twenty-eighth  of  March,  about 
8  o'clock,  a  young  gardener  knocked  at  the  door  of  the 
house  of  M.  Leblond,  the  foreman  of  a  sugar  factory  at 
Nassandres.  No  one  answered.  His  attention  was 
attracted  to  a  broken  window  pane.  Much  disturbed  in 
mind  the  young  man  entered  the  house,  and  stumbled 
over  a  heap  of  corpses.  M.  Leblond,  his  wife,  his  three 
children,  and  the  mother  of  his  wife,  Madam  Etienne, 
an  infirm  old  lady  of  seventy  odd  years,  lay  in  a  pool 
of  blood. 

"Your  antecedents  are  deplorable.  When  only  eigh- 
teen years  of  age  you  were  convicted  of  theft.  Five  other 
convictions  for  larceny  are  marked  up  against  you.  You 
are  the  son  of  a  drunkard  who  died  in  the  hospital  at 
Liseux.  Your  mother  did  not  have  a  very  good  reputa- 
tion for  morals.  It  is  certain  that  you  had  a  bad  educa- 
tion. Your  paternal  grandmother,  eighty-four  years  old, 
is  living  in  the  hospital  at  Nonancourt.  As  for  you, 
you  began  to  distinguish  yourself  in  infancy  by  per- 
verse boyish  tricks.  You  cut  down  young  trees;  you 
opened  taps  of  barrels  of  cider ;  you  threw  stones  on  the 
railway  track;  you  passed  your  nights  in  marauding, 
your  days  in  stealing  from  stalls  and  shop  windows ;  you 
were  shy  and  hypocritical ;  thought  to  be  capable  of  any- 
thing. For  years  you  wandered  from  one  manufac- 
tory to  another,  leaving  everywhere  a  bad  reputation.  In 
1895  you  spent  some  days  at  a  sugar  refinery  at  Nas- 
sandres, whither  you  were  to  return  at  a  later  period 
under  such  tragical  circumstances.  It  was  at  that  time, 
no  doubt,  that  your  attention  was  attracted  to  the  fore- 
man, Leblond,  who  lived  in  a  pretty  house  outside  of  the 
village;  a  man  enjoying  a  good  name,  and  said  to  be 
rich." 

One  would  hardly  suppose  that  the  fact  that  the  pris- 


310  Addresses 

oner  at  the  bar  had  cut  down  trees  when  a  boy  would 
afford  very  conclusive  evidence  that  he  was  guilty  of  the 
crimes  charged  in  the  indictment.  George  Washington 
is  said  to  have  begun  his  career  in  the  same  manner. 

In  the  report  of  the  Pranzini  case  we  learn  that  "M., 
the  President,  read  a  letter  from  Dr.  Laborde,  a  physi- 
cian on  a  line  of  vessels  in  Egypt."  This  letter  is  too 
long  to  be  read  on  the  present  occasion.  The  doctor 
gives  a  bad  account  of  the  prisoner,  saying  that  he  is 
haughty,  dissembling,  selfish,  unprincipled,  always  posing 
before  women.  He  says  that  he  has  no  doubt  about  the 
guilt  of  the  defendant;  and  gives  a  long  account  of  his 
habits  in  swindling  credulous  individuals  of  that  sex. 

The  judge  then  addresses  the  prisoner  as  follows: 

"This  letter  of  Dr.  Laborde  is  a  kind  of  diagnosis, 
showing  you  to  be  a  knave,  utterly  unscrupulous.  What 
do  you  say  to  this  picture? 

"Pranzini  (offended).  I  am  really  surprised  at  this 
letter,  coming  from  a  man  who  has  shown  a  kindly  inter- 
est in  me  for  twelve  years." 

Having  started  out  with  the  assertion  that  the  prisoner 
is  guilty  not  only  of  the  crime  charged,  but  of  many 
others  as  well,  the  judge  then  proceeds  to  interrogate 
him  concerning  every  evil  or  suspicious  circumstance 
attending  his  whole  life  as  based  on  trustworthy  infor- 
mation, suggested  by  mere  love  of  scandal  and  gossip, 
or  invented  by  malice.  When  the  prisoner  has  answered 
a  question,  the  judge  will  say,  "That  amounts  to  a  con- 
fession, "  or  "  It  will  be  hard  to  make  that  go  down  with 
a  jury,"  or  "That  is  in  flat  contradiction  to  what  you 
said  a  while  ago." 

This  would  be  a  hard  ordeal  for  the  best  man  that 
ever  lived;  as  no  one  could  be  ready  to  disprove  on  the 
spur  of  the  moment  all  false  reports  that  might  have 
been  circulated  concerning  him  either  through  mistake, 
spite  or  recklessness,  covering  his  whole  life.    Moreover, 


Trial  by  Jury  in  France  311 

the  prisoner  is  usually  dazed  and  bewildered  on  being 
brought  from  solitary  confinement  in  a  prison  into  the 
august  presence  of  a  tribunal  possessing  the  power  of 
life  and  death.  The  judge  is  an  expert  in  the  art  of 
examination ;  and  he  uses  all  of  his  skill  to  bring  about 
the  conviction  of  the  prisoner  on  inferences  drawn  from 
his  own  statements  made  in  court.  Prisoners,  confused 
and  terrified,  under  such  circumstances  often  succumb 
wholly,  and  answer  at  random,  not  knowing  what  they 
are  saying.  Sometimes  the  arena  swims  round  the 
accused  as  it  did  round  the  dying  gladiator ;  and,  becom- 
ing incapable  of  speech,  he  lapses  into  what  seems  to  be 
mere  dogged  silence.  It  is  in  vain  that  the  judge  urges 
him  to  speak;  humiliation,  fear,  shame,  indignation,  a 
profound  sense  of  abandonment  and  helplessness  have 
reduced  him  to  a  mere  mass  of  inert  matter ;  and  as  such 
he  is  handed  over  to  the  tender  mercy  of  the  jury.  It 
occasionally  happens,  however,  that  the  prisoner  is  more 
than  a  match  for  his  tormentor.  This  is  usually  the 
expert  and  hardened  criminal  who  has  been  over  the 
road  before,  and  has  learned  something  by  experience. 

The  substance  of  this  examination  gets  into  the  news- 
papers ;  and  if  the  defendant  is  acquitted  he  goes  out  of 
the  court  room  with  his  character  blackened  by  many 
charges  and  inuendos  having  no  connection  with  the 
crime  for  which  he  has  been  indicted.  No  wonder  that 
a  great  French  advocate  said  that  if  he  were  accused 
of  stealing  the  towers  of  Notre  Dame  he  would  begin  by 
running  away. 

After  the  judge  has  finished  his  examination  the  wit- 
nesses are  called.  With  us  the  witnesses  for  the  prosecu- 
tion are  called  first,  and  after  that  the  witnesses  for  the 
defense.  In  France,  the  witnesses  are  mingled,  and  are 
called  from  a  list  indiscriminately,  so  that  the  jurors 
cannot  certainly  know,  though  they  may  surmise,  at 
whose  instance  any  particular  witness  has  been  intro- 


312  Addresses 

duced.  Under  a  section  of  the  criminal  code  the  witness 
is  allowed  to  make  his  statement  in  full,  whatever  it 
may  be,  without  interruption  from  anyone.  Perhaps  his 
whole  testimony  may  relate  only  to  some  report  or  rumor, 
what  some  one  told  him  of  the  prisoner,  or  told  him  that 
some  one  else  had  said  about  him.  Sometimes  the  wit- 
ness, without  knowing  a  single  fact  connected  with  the 
case,  merely  gives  his  opinion  of  the  guilt  or  innocence 
of  the  defendant.  This  seems  to  be  a  survival  of  the 
old  system  of  trial  by  compurgators  in  common  use  in 
the  Middle  Ages.  When  the  witness  has  made  his  state- 
ment he  may,  if  he  prefers,  decline  to  answer  any  ques- 
tions put  to  him  either  by  court  or  counsel.  If,  how- 
ever, he  raises  no  such  objection  the  cross-examination 
permitted  by  the  court  is  extremely  scant  and  meagre. 

If  one  witness  contradicts  what  another  has  said  a  step 
is  taken  that  never  fails  to  awaken  the  keenest  interest. 
The  previous  witness  and  the  last  witness  are  put  on  the 
stand  together,  and  there  they  engage  in  a  wordy  duel 
on  the  subject  of  the  conflicts  in  their  testimony.  This 
is  called  the  confrontation  of  witnesses. 

If,  while  the  trial  is  in  progress,  the  judge  receives 
a  letter  or  a  telegram  relating  to  the  case  he  may  read 
it  to  the  jury  if  he  likes;  and  counsel  may  do  the  same 
as  to  letters  or  telegrams  received  by  them. 

As  the  president  seems  to  manage  the  trial  without 
consultation  with  his  fellow  judges,  one  might  wonder 
what  function  they  perform.  But  counsel  for  either  side 
may  at  any  time  present  to  the  court  what  is  called  a 
conclusion,  which  is  nothing  more  than  a  motion  in  writ- 
ing stating  the  grounds  on  which  it  rests  in  a  preliminary 
way  under  various  "whereases,"  such  as  we  see  in  the 
preambles  of  old  English  statutes.  On  receipt  of  this 
the  whole  court,  including  the  prosecuting  officers,  retire 
to  consider  the  conclusion.  When  they  return  the  presi- 
dent announces  the  decision  at  which  thev  have  arrived. 


Trial  by  Jury  in  France  313 

Under  this  system  jury  trials  are  often  drawn  out  to 
great  length.  Legions  of  witnesses  are  introduced  to 
testify  to  rumors,  or  to  make  speeches  for  one  side  or  the 
other.  The  daily  press  often  take  an  active  part  in  the 
proceeding.  Different  newspapers  take  different  sides, 
some  insisting  on  the  innocence  of  the  accused,  others 
asserting  his  guilt ;  each  arguing  the  case  with  zeal,  and 
often  without  scruple.  Certain  witnesses  are  lauded  to 
the  skies,  others  are  lampooned  and  ridiculed.  Counsel 
often  come  in  for  a  liberal  share  of  detraction  and  abuse ; 
and  the  judges  are  not  always  spared. 

But  a  unique  feature  about  such  trials  is  that  the  audi- 
ence take  a  lively  part  in  every  step  by  applauding  and 
hissing,  much  as  they  would  at  a  theater.  If  both  sides 
are  represented  in  the  audience  they  vie  with  each  other 
in  their  efforts,  and  the  excitement  becomes  intense. 
When  the  noise  becomes  intolerable  the  court  threatens 
to  clear  the  room;  but  as  such  a  step  might  result  in  a 
free  fight,  the  judges  generally  compromise  by  suspend- 
ing the  session;  and  then  they  retire  to  their  chambers 
until  the  tumult  subsides;  upon  which  the  session  is 
resumed.  With  regard  to  this  intervention  of  the  pub- 
lic in  the  trial,  M.  Jean  Cruppi,  at  present  an  advocate 
of  the  Court  of  Cassation,  and  a  member  of  the  Chamber 
of  Deputies  for  la  Haute  Garonne,  says: 

"All  the  actors  of  the  judicial  drama  labor  to  influ- 
ence passions  which  none  of  them  have  sufficient  author- 
ity to  suppress.  These  manifest  themselves  with  violence, 
and  sometimes  with  scandal.  Those  who  are  familiar 
with  jurors,  and  have  heard  them  talk,  know  how  much 
this  spectacle  excites  their  astonishment  and  their  cen- 
sure; nevertheless  they  are  influenced  by  it;  and  the 
murmur  of  approval  or  displeasure  that  accompanies  the 
testimony  of  each  witness  necessarily  makes  an  impres- 
sion on  their  minds.  When  the  crowd  interferes  and 
dictates  a  verdict,  the  jury  are  indignant — and  obey." 


314  Addresses 

At  the  close  of  the  evidence  the  attorney-general 
addresses  the  jury,  and  is  followed  by  counsel  for  the 
defense.  The  attorney-general  may  then  rejoin  briefly 
for  the  purpose  of  correcting  mistakes;  and  then  the 
counsel  for  defense  closes  the  argument  in  the  same  man- 
ner. During  the  argument,  counsel  on  either  side  may 
read  and  comment  on  articles  in  newspapers,  private 
letters  and  telegrams,  anything,  whether  introduced  in 
evidence  or  not.  Formerly  the  judge  summed  up  the 
evidence  after  the  English  fashion;  but  that  privilege 
was  taken  away  in  1881 ;  hence  the  jury  are  at  present 
sent  to  their  room  without  instructions  of  any  kind.  On 
arriving  there,  they  find  on  the  wall  a  large  placard  on 
which  are  printed  these  words,  being  a  copy  of  Article 
342  of  the  Code  of  Criminal  Procedure : 

' '  The  law  does  not  require  that  jurors  shall  render  any 
account  of  the  methods  by  which  they  reach  a  conclu- 
sion; prescribes  no  rules  upon  which  must  depend  the 
amount  or  sufficiency  of  the  evidence;  it  requires  that 
they  shall  examine  themselves  thoroughly  and  seriously, 
seeking  in  the  sincerity  of  their  consciences  what  impres- 
sion the  evidence,  both  for  the  prosecution  and  for  the 
defense,  has  made  on  their  minds.  The  law  does  not 
say  to  them,  'You  shall  take  for  true  what  is  proved  by 
a  certain  number  of  witnesses, '  nor  '  You  shall  not  regard 
as  sufficiently  proved  anything  not  based  on  written  docu- 
ments, or  on  the  testimony  of  so  many  indications. '  The 
law  only  asks  of  them  this  single  question:  'Have  you 
a  sincere  personal  conviction?'  It  must  be  borne  in 
mind  that  the  deliberation  of  the  jury  must  relate  solely 
to  the  indictment ;  jurors  must  fix  their  attention  on  the 
facts  charged  in  it,  and  which  relate  to  them;  and  they 
will  fail  in  their  highest  duty  if  they  reflect  on  the  rea- 
sons for  the  criminal  laws,  or  the  effect  that  their  finding 
will  have  on  the  accused.  Their  mission  has  for  its 
object  neither  the  prosecution  or  punishment  of  crime; 


Trial  by  Jury  in  France  315 

they  are  called  on  only  to  decide  whether  the  accused 
is  guilty  of  the  crime  with  which  he  is  charged. ' ' 

If  in  seclusion  the  jury  need  any  more  light,  they  send 
for  the  president  of  the  court,  who  goes  into  their  room 
for  consultation.  What  happens  there  is  supposed  not 
to  transpire. 

Seven  jurors  suffice  to  convict.  If  they  are  evenly 
divided  the  defendant  stands  acquitted.  A  hung  jury 
is  impossible.  It  is,  of  course,  equally  impossible  to  say 
on  what  ground,  under  the  French  practice,  the  verdict 
is  rendered.  Is  it  on  the  opinions  of  witnesses  concern- 
ing the  guilt  or  innocence  of  the  accused?  Or  on  the 
slashing  articles  in  the  newspapers  which  the  jurors 
have  diligently  read?  Or  on  a  multitude  of  idle  and 
more  or  less  conflicting  rumors?  Or  on  the  prevailing 
sentiment  of  the  audience  as  manifested  in  the  court 
room?  Or  on  the  testimony  of  witnesses  knowing  the 
facts  of  which  they  speak?  No  one  can  tell.  The  ver- 
dict is  simply  a  plebiscitum.  The  fact  that  the  pre- 
siding judge  prosecutes  does  not  seem  to  swell  the  num- 
ber of  convictions.  In  Paris,  the  acquittals  amount  to 
about  31  per  cent;  in  London,  to  about  13  per  cent  of 
those  who  are  indicted. 

Verdicts  in  France  are  practically  final  unless  for  some 
incurable  defect  of  form  or  jurisdiction,  in  which  case 
an  appeal  is  allowed.  The  judges  of  the  Assize  cannot 
grant  new  trials;  but  the  Court  of  Cassation  can  set 
aside  a  judgment  and  order  a  new  trial  when  satisfied 
that  the  judgment  has  been  obtained  on  false  or  forged 
testimony.    In  point  of  fact,  that  court  rarely  interferes. 

As  to  trial  of  libel  cases  against  newspapers,  the  law 
clearly  favors  the  defendants.  It  is  well  known  that 
French  newspapers  indulge  in  a  good  deal  of  license. 
Each  newspaper  is  required  by  law  to  have  the  name  of 
its  manager  printed  on  it  in  a  conspicuous  place,  and  he 
is  made  answerable  for  anything  appearing  in  his  sheet; 


316  Addresses 

though  the  writer  of  the  articles  complained  of  may  also 
be  made  a  defendant  if  he  can  be  found;  but  in  case  of 
a  newspaper  having  a  large  corps  of  editors  it  is  gen- 
erally impossible  to  find  him. 

Supposing  a  suit  to  be  brought,  the  newspaper  editor 
gets  the  names  of  all  of  the  jurors  in  the  district,  sends 
them  copies  of  his  paper  gratis  until  the  close  of  the  trial, 
arguing  his  case  in  nearly  every  issue  for  their  special 
benefit.  When  the  manager  comes  into  court,  the  jury 
are  surprised  to  find  a  mild,  rustic  looking  young  man, 
who  evidently  would  not  hurt  a  fly.  If  a  judgment  is 
rendered  against  him,  which  rarely  happens,  it  is  dis- 
covered that  his  estate  consists  of  his  clothes  and  a  lead 
pencil.  If  he  is  sent  to  prison,  his  friends  provide  him 
with  delicacies  and  stay  him  with  flagons  until  his  time 
is  out.  He  is  a  manager  that  does  not  manage ;  and  being 
a  hired  scapegoat,  he  finds  his  berth  rather  an  easy  one. 
He  regards  himself  as  a  martyr  to  the  cause  of  truth ;  and 
his  friends  encourage  that  hallucination. 

French  jurists  are  not  unaware  of  the  defects  of  their 
jury  system;  but  they  cannot  adopt  that  of  England  on 
account  of  the  English  law  of  evidence,  which  they  know 
nothing  about,  and  which  has  indeed  grown  into  formid- 
able proportions.  Some  of  them  advocate  a  system  which 
has  been  adopted  in  parts  of  Germany  and  Switzerland, 
called  in  German, .  Schoffergericht  and  in  French, 
I'echevinage,  but  for  which  we  have  no  name  in  English, 
so  far  as  I  know ;  a  kind  of  blend  between  trial  by  judges 
and  trial  by  jury.  The  court  is  composed  of  a  presiding 
judge  learned  in  the  law  and  either  four  or  six  lay 
judges.  The  presiding  judge  generally  holds  office  for 
life;  but  the  lay  judges  only  hold  for  a  month  or  two. 
A  majority  may  convict.  The  plan  has  at  least  the 
merit  of  simplicity,  and  seems  to  have  given  general 
satisfaction. 

But  the  courts  and  juries  in  France  are  well  enough 


Trial  by  Jury  in  France  317 

constituted.  It  is,  however,  obvious  that  in  the  evolu- 
tion of  trial  by  jury  in  that  country  there  is  much  that 
is  undeveloped.  As  long  as  criminal  cases  were  tried 
before  judges  accustomed  to  weighing  evidence,  the 
admission  of  hearsay  evidence,  secondary  evidence  and 
opinions  of  witnesses  was  comparatively  harmless;  but 
where  the  same  latitude  is  allowed  in  jury  trials,  it  nec- 
essarily produces  confusion  and  uncertainty.  The  course 
of  the  presiding  judge  in  prosecuting  the  accused  is  evi- 
dently a  survival  of  the  practice  that  antedated  trial 
by  jury. 

All  of  the  constitutions  of  France  down  to  the  one 
now  in  force  have  contained  guaranties  of  trial  by  jury. 
The  present  Constitution  does  not ;  and  there  is  no  need 
that  it  should  do  so;  for  trial  by  jury  has  obtained  a 
secure  hold  on  the  affections  of  the  French  people, 
largely,  I  think,  for  a  reason  that  does  not  operate  either 
in  England  or  America.  The  Latin  races  are  passion- 
ately fond  of  dramatic  representations.  "Panem  et 
circenses'n  was  the  cry  of  the  Roman  populace. 

The  French  people  like  a  jury  trial  for  its  dramatic 
interest,  if  for  nothing  else.  They  might  say  of  it  as 
Charles  II.  said  of  the  proceedings  in  Parliament:  "It 
is  as  good  as  a  play." 


TO  A  GRADUATING  LAW  SCHOOL 
CLASS 

Address  Delivered  to  Graduating  Class  of  the  Law  Department 
of  the  University  of  Arkansas,  at  Commencement, 
Little  Rock,  Ark.,  June  J,  1894 


TO  A  GRADUATING  LAW  SCHOOL 
CLASS 

I  regret  to  have  to  say  that  I  have  discovered  no  way 
of  learning  the  law  in  six  easy  lessons;  no  method  that 
will  relieve  you  of  the  necessity  of  close  application  and 
serious  study,  that  ought  to  continue  until  you  should 
sever  your  connection  with  the  legal  profession,  or  until 
you  die.  I  should  rejoice  if  I  could  tell  you  that  you 
may  convince  courts,  control  juries,  satisfy  your  clients, 
*and  win  distinction  in  the  sphere  of  action  to  which 
you  have  devoted  yourselves,  drawing  your  resources  only 
from  cursory  and  casual  reading ;  but  the  truth  compels 
me  to  say  that  no  such  possibilities  exist,  and  that  as  to 
this  subject,  no  true  gospel  has  been  found,  save  that 
of  hard  labor. 

I  find  these  curious  passages  in  the  ancient  Talmud  of 
the  Jews,  which  are  not  altogether  inappropriate  to 
what  I  have  to  say  tonight : 

Rabbi  Chonan,  of  Zepora,  said,  ' '  The  study  of  the  law 
may  be  compared  to  a  huge  heap  of  dust  that  is  to  be 
cleared  away.  The  foolish  man  says,  'It  is  impossible 
that  I  should  be  able  to  remove  this  immense  heap;  I 
will  not  attempt  it;'  but  the  wise  man  says,  'I  will 
remove  a  little  today,  some  tomorrow,  and  more  the  day 
after,  and  thus,  in  time,  I  shall  have  removed  it  all. '  '  It 
is  the  same  with  studying  law. 

In  the  book  of  Proverbs  we  are  told  that  ' '  Wisdom  is 
too  high  for  a  fool."  The  Rabbi  Levi  illustrates  this 
text  by  a  parable:  "A  man  once  hired  two  servants 
to  fill  a  basket  with  water.  One  of  them  said,  'Why 
should  I  continue  this  useless  labor?  I  put  the  water 
in  on  one  side,  and  it  immediately  leaks  out  on  the  other ; 

321 


322  Addresses 

what  profit  is  it?'  The  other  workman,  who  was  wise, 
replied,  'We  have  the  profit  of  the  reward  which  we 
receive  for  our  labor.'  It  is  the  same  in  studying  law. 
One  man  says,  'What  does  it  profit  me  to  study  the  law 
when  I  must  forever  continue  it,  or  else  forget  what  I 
have  learned  ? '  But  the  other  man  replies,  '  We  shall  be 
rewarded  for  the  will  that  we  display,  even  though  we  do 
forget.'  " 

Kabbi  Jochanan  illustrates  the  same  text  with  an  apple 
depending  from  the  ceiling.  "The  foolish  man  says,  'I 
cannot  reach  the  fruit,  it  is  too  high ' ;  but  the  wise  man 
says,  'It  may  be  readily  obtained  by  placing  one  step 
upon  another  until  thy  arm  is  brought  within  reach  of 
it.'  The  foolish  man  says,  'Only  a  wise  man  can  study 
the  entire  law';  but  the  wise  man  replies,  'It  is  not 
incumbent  on  thee  to  acquire  the  whole. '  ' ' 

When  I  first  read  these  ancient  passages,  I  wondered 
what  these  venerable  Rabbis  would  think  of  the  study 
of  the  law  if  they  could  rise  from  their  long  sleep  of 
centuries  and  inspect  one  of  our  great  law  libraries. 

The  immense  body  of  the  law  that  he  mentioned  that 
was  so  difficult  to  learn  in  one  short  liftime  consisted  of 
the  five  books  of  Moses,  a  large  part  of  which  is  merely 
historical,  and  such  comments  as  had  been  made  upon 
them  by  men  distinguished  for  learning.  But  we  have 
thousands  of  law  books  where  these  Rabbis  had  but  one ; 
and  if  all  of  these  books  should  be  destroyed  by  the 
torch  of  some  modern  Omar,  still  no  one  could  hope  to 
read  any  more  than  a  small  part  of  the  law  books  that 
come  forth  daily  from  the  teeming  press,  embracing 
annually  something  like  20,000  adjudicated  cases,  to  say 
nothing  of  many  text  books,  monographs,  and  other  legal 
writing  of  various  kinds.  Tanthus,  the  master  of  Aesop, 
said,  "I  will  undertake  to  drink  up  the  sea,  if  you  will 
give  me  time ;  but  I  will  not  promise  to  drink  up  all  the 
rivers  that  run  into  it." 


To  a  Graduating  Law  School  Class      323 

Had  our  mental  faculties  increased  as  books  have  mul- 
tiplied, the  situation  would  be  more  tolerable.  But  such 
is  not  the  case.  In  respect  of  the  things  that  were  culti- 
vated by  the  ancients,  such  as  history,  poetry,  oratory, 
architecture  and  sculpture,  they  have  left  us  much  that 
we  can  hardly  hope  to  rival,  much  less  to  surpass.  The 
simple  truth  is,  that  though  we  have  vastly  extended  the 
bounds  of  human  knowledge,  the  human  mind  has  made 
no  corresponding  improvement,  and  has  perhaps  lost 
something  of  its  primitive  vigor. 

But  if  the  ancients  complained  that  art  was  long  and 
life  was  short,  we  may  well  believe  that  they  were  not 
so  profoundly  impressed  with  a  sense  of  utter  helpless- 
ness in  view  of  accessible  knowledge  as  we  are  today, 
when  almost  any  single  department  of  learning  would 
more  than  exhaust  the'  labors  of  the  longest  life.  The 
truth  is,  that  our  knowledge  has  far  outrun  our  capacity 
for  dealing  with  it.  But  if  the  law  has  expanded  until 
no  one  can  ever  know  more  than  a  very  small  part  of  it, 
the  same  thing  is  true  of  most  other  sciences.  At  pres- 
ent, no  one  would  pretend  to  know  all  about  the  science 
of  mathematics,  which  consists  of  many  separate  depart- 
ments more  or  less  intimately  related.  The  science  of 
geology  is  made  up  of  a  number  of  allied  sciences,  none 
of  which  can  be  learned  in  less  than  a  lifetime ;  and  some 
of  them  have  to  be  farther  parcelled  out  in  order  to 
bring  them  within  the  grasp  of  individual  effort.  The 
same  thing  is  true  of  medicine,  chemistry  and  all  other 
great  sciences  of  modern  times.  But  of  all  the  branches 
of  learning,  none  is  more  extensive  or  more  complex  than 
that  of  the  law.  Having  its  origin  in  the  most  remote 
times,  it  has  gradually  adapted  itself  in  an  imperfect 
manner,  as  all  things  human  are  imperfect,  to  all  the 
wonderful  complications  of  modern  life.  If,  in  the  course 
of  its  development,  it  embodies  the  constant  aspiration 
of  men  for  an  ideal  system  of  justice,  it  nevertheless 


324  Addresses 

bears  within  itself  the  marks  of  fortuitous  social  cus- 
toms and  conflicts  and  revolutions  long  past,  and  that 
otherwise  have  left  little  or  no  trace,  but  which,  for  the 
reasonable  and  proper  understanding  and  interpretation 
of  the  law,  must  be  faithfully  remembered. 

The  vast  extent  and  intricacy  of  the  law  ought  not, 
however,  to  cool  your  ardor,  or  to  paralyze  your  ambi- 
tion. It  may  be  that  after  forty  or  fifty  years  of  the 
diligent  study  of  the  science  to  which  you  have  devoted 
yourselves,  you  may  have  a  more  profound  and  abiding 
sense  of  ignorance  than  that  by  which  you  are  oppressed 
tonight.  In  the  writings  of  the  Buddhists'  religion,  we 
are  told  that  the  last  enemy  we  have  to  conquer  is 
ignorance.  Yes,  that  is  the  last  foe,  the  one  that  meets 
us  at  our  entrance  upon  life,  that  attends  us  at  every 
step,  in  whose  giant  shadow  we  march  to  the  grave,  and 
against  which  we  fight,  if  we  fight  at  all,  unprevailing. 
But  such  is  one  of  the  ineradicable  evils  of  almost  any 
intellectual  career  upon  which  you  may  enter;  and  it  is 
worse  than  useless  to  complain  of  those  limitations  that 
are  inseparable  from  life  itself. 

If  you  cannot  reach  perfection,  you  may,  at  least,  over- 
come many  difficulties;  you  can  make  yourself  useful  in 
your  day  and  generation,  and  may,  perchance,  achieve 
distinction.  In  order  to  attain  to  any  tolerable  degree 
of  success,  it  is  required  that  you  shall  devote  yourselves 
to  a  life  of  unrelenting  study  and  labor;  but  all  the 
rewards  of  an  honorable  ambition  are  before  you.  You 
will  be  brought  to  the  highest  test  of  your  qualifications 
by  men  in  your  own  calling,  who  are  emulous  of  suc- 
cess and  who  may  be  as  well  or  better  equipped  for  the 
struggle  than  yourselves,  and  by  the  judges  of  courts, 
who  will  review  at  leisure  the  acts  that  you  were  com- 
pelled to  perform  on  the  spur  of  the  moment.  But  it  will 
not  do  to  rely  on  the  inspiration  of  the  moment.  It  is 
the  habit  of  doing  that,  that  has  led  to  the  discomfiture 


To  a  Graduating  Law  School  Class      325 

and  the  failure  of  many  lawyers  who  were  distinguished 
for  brilliancy.  It  is  true  that  the  law  is  not,  and  can 
never  be  made,  an  exact  science ;  but,  nevertheless,  it  has 
many  fixed  principles  that  are  as  inexorable  as  the  law 
of  gravitation  itself;  and  if  you  do  not  know  these, 
your  peril  in  every  emergency  must  be  extreme;  for 
though  there  are  many  ways  of  being  wrong,  there  is 
only  one  way  of  being  right,  and  the  chances  of  accu- 
racy in  a  random  guess  must  be  exceedingly  remote. 

Nor  will  it  do  to  make  a  cover  for  our  ignorance  by 
saying  that  the  law  is  so  extensive  that  the  most  inde- 
fatigable students,  after  years  of  study,  admit  that  any- 
thing like  a  tolerable  acquaintance  with  its  infinite  rami- 
fications is  quite  out  of  the  question ;  for  the  same  thing 
is  true,  as  I  have  said,  of  all  the  branches  of  learning 
in  which  intelligent  men  contend  for  supremacy.  Con- 
sider how  little  we  know  of  our  native  language,  which 
we  began  to  lisp  in  our  earliest  infancy.  It  is  said  to 
contain  more  than  150,000  words,  to  say  nothing  of  a 
vast  multitude  of  words  that  are  sometimes  used,  though 
they  are  not  fully  naturalized  in  our  tongue;  and  yet 
Shakespeare,  who  used  more  English  words  than  any 
other  writer,  used  no  more  than  15,000,  while  ordinary 
persons  use  only  about  3,000  in  the  course  of  a  life- 
time. There  is  no  part  of  the  law  a  knowledge  of  which 
will  not  be  valuable  to  you,  but  there  is  a  large  part  of 
it  for  which  you  will  never  have  any  practical  use.  If 
you  do  not  know  all  the  law,  you  will  not  have  to  con- 
tend with  anyone  who  knows  it  all  by  heart;  for  such 
a  phenomenon  does  not  exist  in  any  of  the  five  great 
continents  or  the  islands  of  the  world.  The  judge  on 
the  bench  is  presumed  to  know  the  law;  he  may  look 
the  embodiment  of  wisdom ;  and  his  learning  may,  indeed, 
greatly  exceed  your  own;  and  yet,  if  you  have  duly 
consulted  your  books,  you  may  know  much  more  about 
the  law  of  your  case  than  he  does. 


326  Addresses 

One  of  the  faculties  that  is  of  supreme  importance 
alike  to  the  practicing  lawyer  and  judge  is  that  of  intel- 
ligent discrimination,  which  can  only  be  acquired  in  its 
highest  degree  by  long  and  patient  study.  The  law,  it 
is  truly  said,  consists  of  a  series  of  rules  and  exceptions ; 
and,  while  exceptions  that  have  no  rational  foundation 
are  to  be  frowned  upon  and  rejected,  nevertheless,  great 
care  is  to  be  exercised  in  order  to  prevent  the  immola- 
tion of  justice  at  the  dictation  of  rules  that  are  only 
intended  for  general  use,  and  not  for  universal  applica- 
tion. A  keen  sense  of  justice,  a  disciplined  discrimina- 
tion between  what  is  right  and  what  is  wrong,  a  prudent 
regard  for  public  utility,  will  enable  you  to  confine  gen- 
eral rules  to  their  proper  sphere  of  usefulness,  without 
corrupting  the  logic  or  destroying  the  symmetry  of  juris- 
prudence. Man  is  not  made  for  the  law,  but  the  law  is 
made  for  man;  and  when  it  is  so  adjusted  to  human 
affairs  as  best  to  subserve  the  purposes  of  right,  reason 
and  justice,  its  highest  utility  as  an  instrument  for  the 
promotion  of  peace  and  for  the  advancement  of  civiliza- 
tion is  best  attained.  On  the  other  hand,  when  the  law 
is  found  to  consist  in  arbitrary  and  technical  rules  that 
are  applied  without  a  wise  discretion,  when  it  degen- 
erates into  empty  forms  and  abounds  in  barren  quibbles, 
it  must  soon  fall  into  merited  contempt.  It  is  well 
enough  to  revere  what  is  ancient ;  but  all  things  change, 
and  things  that  are  no  longer  suited  to  present  needs 
should  be  abandoned.  Inconsiderable  innovations  involve 
many  dangers  that  cannot  be  foreseen;  yet,  that  can 
hardly  be  called  an  innovation  that  brings  the  known 
and  fixed  principles  of  the  law  more  nearly  into  har- 
mony with  the  daily  needs  of  a  social  life  that  is  always 
changing  whether  we  wake  or  sleep.  One  of  the  most 
common  of  the  mistakes  of  a  young  lawyer,  and  one 
into  which  older  lawyers  often  fall,  is  in  classifying  cases 
that  are  under  consideration,  by  their  most  striking  fea- 


To  a  Graduating  Law  School  Class      327 

tures,  by  some  general  rule  which  further  investigation 
would  serve  to  prove  wholly  inapplicable ;  for  crude  and 
hasty  generalization  offer  a  perpetual  snare  to  the  indo- 
lent and  unwary.  Perhaps  I  can  best  illustrate  the  profit 
of  close  discrimination  by  reference  to  an  incident  in  the 
life  of  John  Scott,  afterwards  Lord  Eldon,  in  connection 
with  the  case  of  Akroyd  vs.  Smithson,  which  is  now 
considered  as  a  leading  case  on  the  subject  of  the  law 
of  real  estate  in  England. 

Scott,  soon  after  his  admission  to  the  bar,  being  then 
a  very  young  man,  was  retained  in  the  cause  by  a  solic- 
itor for  one  of  the  defendants,  merely  for  the  purpose 
of  entering  an  appearance  and  assenting  to  a  decree  as 
prayed  by  the  plaintiffs.  Having  examined  the  case 
very  thoroughly,  he  concluded  that  it  did  not  fall  within 
the  rule  commonly  applied  to  cases  that  were  in  many 
respects  similar,  and  suggested  that  a  defense  should 
be  made.  His  client,  having  communicated  this  recom- 
mendation to  an  old  lawyer  of  established  reputation, 
who  had  the  control  of  the  defense,  the  latter  said,  "Do 
not  send  good  money  after  bad;  let  Mr.  Scott  have  a 
guinea  to  give  consent ;  and  if  he  will  argue,  why  let  him 
do  so;  but  give  him  no  more."  Young  Scott,  therefore, 
did  argue  the  case,  upon  a  well  founded  distinction  that 
had  never  been  suggested  or  passed  on  by  the  courts, 
and  gained  it  before  Lord  Chancellor  Thurlow,  thereby 
acquiring  an  established  reputation  at  the  bar,  and  pav- 
ing the  way  to  that  success  which  eventually  made  him 
Chief  Justice  and  twice  Lord  Chancellor  of  England, 
and  a  peer  of  the  realm.  You  will  find  the  case  of 
Akroyd  vs.  Smithson,  reported  in  Smith's  Leading  Cases, 
and  by  reading  it  you  will  discover  how  it  was  differ- 
entiated from  previous  decisions. 

How  was  this  victory  achieved  ?  Certainly  not  wholly 
by  native  intellect ;  for  Lord  Eldon  afterwards  told  that 
in  those  days  of  his  early  struggles  he  read  so  late  at 


328  Addresses 

night  that  he  often  had  to  tie  a  wet  towel  around  his 
head  in  order  to  keep  from  going  to  sleep;  and  if  he 
had  not  industriously  cultivated  his  discriminating 
faculties,  he  never  could  have  discovered  the  difference 
that  existed  between  cases  that  at  first  sight  were  seem- 
ingly alike.  To  the  average  traveler,  Nature  may  pre- 
sent a  succession  of  unvarying  and  monotonous  land- 
scapes ;  but  to  the  cultivated  eye  of  the  artist,  each  will 
be  instinct  with  individual  qualities,  and  will  be  endowed 
with  beauties  peculiarly  its  own.  The  monotonous  click 
of  the  telegraph  instrument  conveys  to  you  no  informa- 
tion, but  for  the  skillful  operator,  it  is  gifted  with  the 
powers  of  intelligent  speech.  So  it  is  in  the  law.  Dis- 
tinctions that  really  exist,  and  that  in  the  interest  of 
justice  ought  not  to  be  overlooked,  are  only  visible  to 
the  eye  of  the  well  trained  lawyer.  This  faculty  of  see- 
ing all  the  details  of  every  problem  in  their  true  light, 
so  as  to  define  accurately  the  question  to  be  solved,  can 
only  be  created  and  developed  by  much  reading  and 
study.  The  word  "contemplation"  is  said  to  be  derived 
from  the  Latin  word  "templum,"  "temple,"  because  in 
ancient  times  wise  and  learned  men  who  had  to  perform 
severe  intellectual  tasks,  or  to  ponder  questions  of  great 
difficulty  often  repaired  to  the  temples,  in  whose  quiet 
seclusion,  far  from  the  noise  of  the  maddening  crowd, 
they  could  devote  the  interval  to  profound  and  continued 
thought;  and  hence  the  very  word  is  suggestive  of  that 
mental  abstraction  and  labor  which  are  indispensable  to 
the  comprehension  of  any  subject  so  exacting  as  that  of 
the  law.  In  one  of  his  plays,  Plautus  likens  a  young 
man  to  a  ship  that  has  just  left  the  docks.  The  sails 
are  new,  the  woodwork  is  freshly  painted,  it  has  an 
appearance  of  great  strength  and  solidity,  so  that  it 
seems  to  put  to  shame  older  vessels  that  have  buffeted 
many  a  storm.  But  in  point  of  fact,  its  timbers  are 
green,  and  its  different   parts  have  not  yet  adjusted 


To  a  Graduating  Law  School  Class      329 

themselves  to  each  other  so  as  to  develop  the  highest 
degree  of  endurance  and  efficiency.  It  has  not  yet  been 
tempered  by  long  contact  with  tempest  and  wave,  it 
has  not  yet  been  thoroughly  saturated  with  the  salt  air 
of  the  sea,  it  has  not  acquired  that  elasticity  and  dexter- 
ity which  enable  older  ships  to  outweather  the  most 
terrible  storms;  and  thus  it  may  chance  that  the  new 
and  untried  vessel  may  go  to  pieces  and  founder  in  the 
quiet  harbor,  or  may  disappear  at  the  first  breath  of  the 
tornado. 

It  may,  no  doubt,  be  regarded  as  one  of  the  misfor- 
tunes of  life  that  we  are  called  upon  to  make  the  most 
momentous  decisions  at  that  period  of  our  career  when 
passion  is  strongest,  and  when  our  judgments  are  most 
immature.  So  great  is  the  facility  of  youth  for  making 
mistakes  that  it  is  said  of  life  that  youth  is  a  blunder, 
manhood  a  struggle  and  old  age  a  regret.  The  struggle 
of  manhood  to  repair  the  thoughtless  errors  of  youth  are 
often  harrowing  and  intense ;  and  the  evening  of  life  is 
clouded  with  vain  regrets  for  abject  failures  or  for  vic- 
tories that  are  far  from  complete.  Had  the  first  steps 
been  ordered  aright,  the  struggle  would  have  been  need- 
less, and  the  regrets  would  have  been  replaced  by  a 
comforting  sense  of  duties  performed  and  a  triumph 
achieved.  A  few  very  great  and  wise  men  have  escaped 
errors,  and  have  avoided  the  toil  and  humiliation  that 
inevitably  follow  in  their  train ;  and  they  are  held  up  as 
bright  examples  to  be  imitated  by  .those  who  are  capable 
of  learning  from  the  experience  of  men  who  have  suc- 
cessfully overcome,  by  a  timely  exercise  of  wisdom,  the 
many  difficulties  that  never  fail  to  accumulate  in  the 
pathway  of  life.  Every  victory  that  comes  late  is  only 
partial  victory,  and  hardly  deserves  the  name ;  but  every 
victory  in  early  life  brings  with  it  a  new  sense  of  strength 
and  confidence  that  lightens  the  burdens  and  lessens  the 
dangers  of  all  future  contests. 


330  Addresses 

The  first  few  years  of  your  professional  career  will 
probably  be  decisive  of  all  the  rest.  In  our  calling  it  is 
not  the  readiest  or  even  the  most  eloquent  young  man 
that  gives  the  highest  promise  of  success ;  but  that  place 
is  reserved  for  the  youth  that  gives  his  days  and  nights 
to  diligent  labor,  who  nourishes  his  lonely  heart  with 
study.  Whoever  would  accomplish  great  and  worthy 
things  must  arm  himself  with  patience  and  self  denial, 
must  choose  his  path  with  discretion,  and  must,  avoiding 
all  temptations,  resolutely  pursue  it  to  the  end.  My 
Lord  Coke  says  that  law  is  a  deep  well  from  which  every 
man  draweth  according  to  his  strength.  What  you  need 
is  an  intimate  knowledge  of  the  great  principles  of 
jurisprudence,  a  knowledge  of  the  jurisdiction  of  the 
courts,  of  the  methods  of  procedure,  of  the  laws  of  evi- 
dence, and  of  every  detail  that  you  may,  with  the  aid  of 
a  trained  intellect,  and  the  help  of  a  memory  subjected 
to  patient  discipline,  be  able  to  acquire.  There  is  no 
royal  road  to  learning,  and  youth  is  the  time  to  lay  up 
that  knowledge  upon  which  the  future  will  make  repeated 
and  unexpected  demands,  and  without  which  you  had  as 
well  trust  yourself  to  vexed  and  stormy  seas  without 
chart  and  without  compass  or  rudder.  The  habit  of 
serious,  earnest  and  manly  study,  early  begun,  and 
prosecuted  with  undeviating  fidelity,  affords  a  guaranty 
of  success  with  which  nothing  else  can  compare.  In 
preparing  for  the  professional  conflicts  and  duties  upon 
which  you  must  soon  enter,  no  time  is  to  be  lost ;  for  if 
once  lost  it  can  never  be  recovered.  The  vast  volumes  of 
the  law  are  open  before  you;  their  abounding  contents 
cannot  be  mastered  in  a  day  or  year;  but  by  diligent 
attention,  day  by  day,  you  may  hope  in  time,  to  attain 
to  such  a  knowledge  of  the  law  as  will  enable  you  to 
take  a  high  rank  in  your  profession. 

There  has  always  been  a  controversy  among  lawyers 


To  a  Graduating  Law  School  Class      331 

as  to  the  amount  of  reading  outside  of  his  professional 
duties,  that  the  practicing  lawyer  may  safely  permit 
himself  to  indulge  in.  This  is  a  subject  upon  which  it 
is  perhaps  impossible  to  lay  down  any  rule  for  universal 
application.  Some  will  say  that  as  the  most  of  a  lawyer 's 
time  is  necessarily  taken  up  with  labor  in  his  office  and 
in  the  courts,  he  can  have  but  little  or  no  time  for  gen- 
eral reading;  that  the  law  is  a  jealous  mistress  and  will 
not  tolerate  a  divided  worship.  On  the  other  hand,  it  is 
said  that  the  lawyer  who  does  not  court  the  refining 
influences  of  polite  literature,  must  always  appear  rude 
and  uncouth ;  that  as  all  work  and  no  play  makes  Jack 
a  dull  boy  a  proper  measure  of  attention  to  the  great 
models  of  literary  style  has  the  effect,  not  only  to  cul- 
tivate the  critical  faculties,  and  to  improve  the  taste, 
but  that  by  affording  a  variety  of  pleasing  subjects  to 
the  mind  it  gives  to  it  a  healthier  tone,  and  will  better 
enable  it  to  deal  with  the  more  intricate  and  abstruse 
problems  of  the  law;  that  in  the  varied  emergencies  of 
practice,  the  lawyer  needs  to  know  not  only  the  law,  but 
the  details  of  the  wonderful  science  of  the  human  heart, 
which  is  nowhere  so  well  or  so  impressively  taught  as  in 
the  works  of  the  great  poets,  dramatists,  essayists,  novel- 
ists and  historians. 

On  this  subject  it  would  seem  that  the  rule  should 
vary  according  to  individual  temperament.  The  man 
who  naturally  possesses  literary  tastes,  will  have  to 
repress  the  temptation  to  stray  too  often,  and  to  linger 
too  long  outside  the  legal  fold ;  while  he  whose  tastes  in 
that  respect  are  less  seductive,  may  develop  a  greater 
mental  symmetry  by  filling  in  odd  intervals  of  time  with 
literary  studies  that  others  differently  constituted  would 
deem  nothing  more  than  agreeable  distractions  from  the 
severe  strain  of  long  continued  legal  studies.  More- 
over, it  may  be  remembered  that  there  are  but  few 


332  Addresses 

rules  that  are  adapted  for  universal  use,  and  that  there 
have  been  many  great  and  successful  lawyers  that  virtu- 
ally limited  their  reading  to  the  law  alone. 

Economy  of  time  is,  of  course,  for  every  student,  a 
matter  of  the  first  importance.  The  hours  that  are  often 
spent  in  dawdling  over  the  sensational  articles,  the 
trivialities  and  puerilities  of  newspapers,  the  platitudes 
of  fashionable  magazines,  the  shallow  sentiment  of  the 
popular  novel,  are,  for  the  most  part,  thrown  away.  It 
was  good  advice  of  Mr.  Emerson,  never  to  read  a  lit- 
erary book  that  has  not  been  published  for  at  least  a 
year;  for  by  that  time  the  most  of  the  books  that  come 
out  have  gone  down  the  back  stairway  of  time,  and  have 
been  happily  forgotten,  so  that  you  need  not  read  them 
at  all. 

But  there  are  many  works  in  our  language,  and  in 
other  languages  easily  enough  accessible,  and  in  all 
departments  of  literature,  that  have  attained  to  the 
highest  rank,  which  are  universally  conceded  to  be  the 
productions  of  the  greatest  minds  that  have  ever  visited 
our  planet;  works  that  may  always  be  consulted  with 
pleasure,  and  with  profit,  by  men  of  every  calling  and 
pursuit  in  life. 

There  is  one  kind  of  literary  reading  equally  enter- 
taining and  instructive  that  is  so  nearly  within  the  pale 
of  law  as  to  be  regarded  as  obligatory  upon  every  lawyer 
who  wishes  to  be  considered  as  fairly  well  equipped  for 
the  practice  of  his  profession;  I  mean  the  history  of 
England,  which  shows  the  origin  and  development  of 
our  system  of  laws,  and  the  history  of  our  own  land 
that  shows  how  those  laws  have  been  modified  and 
changed  by  the  rise  and  progress  of  institutions  peculiar 
to  our  country ;  and  by  modern  changes  in  opinions  and 
social  life,  which,  in  many  cases  have  supplied  new 
standards  of  utility. 

No  less  instructive  is  legal  biography,  the  lives  of  the 


To  a  Graduating  Law  School  Class      333 

great  judges  and  lawyers  who,  rising  in  many  instances 
from  poverty,  obscurity  and  the  lowest  ranks  of  life,  have 
overcome  difficulties  that  seemed  insurmountable  and 
have  compelled  the  homage  and  admiration  of  the  world. 
To  the  young  lawyer,  such  reading  is  not  only  instruc- 
tive, but  it  is  full  of  encouragement  for, 

"The  lives  of  great  men  all  remind  us, 
We  can  make  our  lives  sublime, 
And  departing  leave  behind  us, 
Footprints  on  the  sands  of  time." 

Particularly  would  I  recommend  to  you  the  reading 
of  Lord  Campbell's  Lives  of  the  Lord  Chancellors  and 
Lives  of  the  Chief  Justices  of  England,  books  written 
by  an  eminent  jurist  that  present  to  the  reader  interest- 
ing and  instructive  pictures  of  many  men  who  were 
highly  distinguished  in  their  day  and  generation,  and 
which  display  in  a  dramatic  manner  the  rise  and  growth 
of  many  institutions  under  which  we  continue  to  live. 

Buff  on  said,  "patience  is  genius,"  a  saying  which  he 
illustrated  by  the  labors  of  a  lifetime,  and  he  came  as 
near  as  anyone  ever  did  to  proving  the  paradox.  He  not 
only  enlarged  the  domain  of  science  in  many  ways,  the 
result  of  attentive  observation  and  diligent  labor,  but 
he  left  behind  him  many  voluminous  writings,  of  which 
it  may  be  said  that  they  do  not  contain  a  sentence  that 
is  not  a  model  of  grace  and  elegance,  showing  the  most 
exquisite  taste  in  the  use  of  language. 

The  labor  with  which  the  purification  of  his  style  was 
attained  is  well  known.  He  always  wrote  on  very  wide 
paper,  which  was  ruled  into  five  broad  columns.  In  the 
first,  he  wrote  out  what  he  had  to  say  on  the  subject 
that  he  had  in  hand;  in  the  second,  third,  fourth  and 
fifth  columns  he  wrote  the  same  matter  over  again  with 
successive  improvements ;  and  it  was  never,  until  he  had 
written  it  five  times,  that  he  succeeded  in  putting  it  into 


334  Addresses 

the  shape  in  which  he  was  willing  to  submit  it  to  public 
inspection.  One  of  his  books  he  wrote  and  re-wrote 
eleven  times  before  publication. 

One  of  the  friends  of  Daniel  Webster,  who  was  familiar 
with  his  methods,  said  that  he  had  often  thought  that 
if  other  men  had  given  the  same  intense  labor  to  their 
speeches  that  he  did,  they  might  have  been  equally  dis- 
tinguished for  oratory.  You  all  know  by  what  con- 
tinuous effort  it  was  that  the  stammering  Demosthenes 
succeeded  in  making  himself  the  greatest  orator  of  all 
time.  Sir  Isaac  Newton,  who  discovered  the  laws  that 
control  the  stars  in  their  orbits,  and  weighed  in  invisible 
scales  the  sun,  the  moon  and  the  planets,  dissolved  light 
into  its  original  elements,  who  advanced  the  science  of 
mathematics  into  remote  regions  previously  unknown, 
said  that  the  only  advantage  he  possessed  over  other  men 
was  that  he  was  able  to  concentrate  his  mind  on  any  one 
subject  unremittingly  for  twenty-four  hours. 

It  is  no  doubt  true  that  it  is  not  every  man  of  good 
natural  abilities  who  can  attain  to  the  highest  rewards 
of  exertion;  but  even  what  is  called  native-born  genius, 
extraordinary  aptitude  for  any  particular  career  of  life, 
is  so  dependent  on  labor  that  it  is  generally  difficult  to 
say  how  far  each  has  contributed  to  the  ultimate  result. 

Lord  Byron  is  a  man  who  is  supposed  by  many  to  have 
written  spontaneously  in  the  fervor  of  poetic  inspira- 
tion ;  but  yet  when  you  look  at  the  extent  and  variety  of 
the  writings  that  he  left  behind  him  at  the  end  of  a  short 
life  of  thirty-seven  years,  he  was  an  exceedingly  busy 
and  diligent  man,  writing  for  fame  which  was  dearer  to 
him  than  life. 

These,  and  many  other  examples  that  might  be  men- 
tioned, suffice  to  show  that  what  was  said  by  Shake- 
speare, who  himself  must  have  been  a  man  of  wonderful 
diligence,  contains  a  profound  truth  which  most  men 
may  lay  to  heart : 


To  a  Graduating  Law  School  Class      335 

"The  fault,  dear  Brutus,  is  not  in  our  stare, 
But  in  ourselves,  that  we  are  underlings." 

I  would  not,  however,  have  you  believe  that  I  wish  to 
convey  the  idea  that  any  one  can,  by  mere  force  of 
industry,  make  himself  a  great  man.  Great  men  are 
phenominal  freaks  of  nature  that  but  rarely  appear. 
The  largest  biographical  dictionary  extant  hardly  con- 
tains more  than  20,000  names,  names  of  men  scarcely 
equal  to  the  population  of  our  little  city.  And  many 
of  these  are  only  mentioned  because  they  were  kings  or 
emperors,  or  occupied  some  other  representative  char- 
acter; or,  what  is  worse,  because  they  were  warriors 
who  cursed  the  world  with  their  cruelty,  or  charlatans 
possessing  not  the  slightest  tincture  of  true  greatness; 
reprobates,  whose  evil  deeds  have  kept  their  names  alive 
as  a  reproach  and  a  warning  to  mankind. 

It  is  of  ill  omen  for  any  one  to  begin  life  with  false 
and  exaggerated  notions  of  his  own  ability,  for  these 
can  only  end  in  disappointment.  Men,  who  like  "Wash- 
ington, have  accomplished  great  results,  have  not  been 
vain  men.  Vain  men  are  generally  men  who  have  not 
measured  their  minds  accurately  with  those  of  the  great 
men  who  have  shed  their  light  on  the  past.  Nothing  so 
humbles  incipient  pride  as  an  intimate  communion  with 
the  thoughts  of  men  whose  surprising  endowments  have 
lifted  them  above  the  level  of  their  fellow  men.  The 
men  whom  I  have  mentioned  were  gifted  with  rare  and 
remarkable  talents,  which,  however,  would  have  rusted 
in  obscurity  if  not  seconded  with  energy.  If  we  are  less 
fortunate,  and  can  claim  no  more  than  the  ordinary 
talents  that  are  distributed  among  men,  surely  there 
exists  a  greater  reason  why  we  should  cultivate  them 
with  increased  diligence. 

You  cannot  take  up  the  works  of  any  of  the  great 
masters  of  jurisprudence  without  perceiving  the  marks 
of  unwearied  toil,  stern  self  denial  and  the  most  soul 


336  Addresses 

subduing  application  which  have  removed  difficulties, 
have  broken  down  barriers,  and  have  conferred  upon 
them  a  distinction  and  a  fame  quite  beyond  the  dreams 
of  indolence.  Very  often  in  the  world  of  the  mind  their 
achievements,  when  duly  weighed,  appear  hardly  less 
astonishing  than  the  fabled  labors  of  Hercules. 

It  may  be  that  you  can  never  hope  to  rival  these  great 
lights  of  jurisprudence  that  shine  perpetually  like  the 
stars  in  the  firmament  of  heaven ;  but  you  can,  at  least, 
up  to  the  measure  of  your  ability  imitate  their  proud 
example;  and  without  such  emulation,  you  are  doomed 
to  a  bitter  and  hopeless  disappointment,  which  may  well 
end  in  despair. 

Mr.  Justice  Story  says : 

"The  law  is  a  science  of  such  vast  extent  and 
intricacy,  of  such  severe  logic  and  nice  dependencies, 
that  it  has  always  tasked  the  highest  minds  to  reach  even 
its  ordinary  boundaries.  But  eminence  can  never  be 
attained  without  the  most  laborious  study  united  with 
talents  of  a  superior  order.  There  is  no  royal  road  to 
guide  us  through  its  labyrinths.  These  are  to  be  pene- 
trated by  skill,  and  mastered  by  a  frequent  survey  of 
land  marks.  It  has  almost  passed  into  a  proverb  that 
the  lucubrations  of  twenty  years  will  do  little  more  than 
conduct  us  to  the  vestibule  of  the  temple ;  and  an  equal 
period  may  well  be  devoted  to  exploring  the  recesses. ' ' 

To  mitigate  this  bleak  prospect,  however,  let  it  be 
added  that  all  of  these  years  of  study  are  not  neces- 
sarily devoid  of  pleasure;  for  though  the  study  of  the 
law  may  require  the  closest  and  most  undivided  atten- 
tion, it  possesses  an  interest  not  inferior  to  that  of  any 
other  great  science;  that  interest  increases  with  the 
increase  of  knowledge  of  its  spirit,  its  reasons,  its  objects, 
its  operations,  its  wonderful  scope  and  diversity,  and 
the  infinity  of  its  applications ;  and  there  is  no  pleasure 
so  lasting  as  that  which  attends  the  pursuit  of  knowledge. 


To  a  Graduating  Law  School  Class      337 

Nor  should  we  be  discouraged  by  the  vast  and  formidable 
array  of  books  which  adorn  or  encumber  the  spacious 
temple  of  the  law,  for,  as  the  old  Rabbi  said,  it  is  not 
incumbent  on  us  to  know  the  whole  of  the  law,  and  in 
these  myriads  of  volumes  under  which  our  shelves  are 
groaning  are  many  repetitions,  while  many  of  them  are 
only  for  occasional  use.  Very  many  questions  are  set  at 
rest  by  the  statutes  and  reports  of  your  own  state,  a 
familiar  acquaintance  with  which  is  of  indispensable 
importance  to  you.  So  that  it  is  only  occasionally  that 
you  will  be  called  to  explore  the  vast  domain  of  con- 
flicting authorities  on  doubtful  questions.  But  such 
times  for  extensive  and  thorough  enquiry  will  sometimes 
come,  and  then,  if  you  are  not  well  versed  in  the  fun- 
damental principles  of  the  law,  your  ineffectual  quest 
may  only  lead  to  humiliation  and  defeat ;  for,  being  but 
indifferently  prepared  for  the  search,  you  may  chance 
to  look  in  vain  for  that  which  others  could  discover 
without  delay  or  difficulty. 

The  course  of  legal  studies  in  the  German  Universities 
is  usually  thorough,  embracing  as  it  does  from  four  to 
six  years,  during  which  the  student  must  attend  from 
ten  to  fifteen  lectures  a  week  upon  all  branches  of  the 
civil,  canon,  ecclesiastical,  customary,  public,  statutory, 
institutional  and  international  law,  and  political  econ- 
omy, of  each  of  which  lectures  he  must  take  copious 
notes,  during  which  time  he  also  receives  supplementary 
instruction  from  private  teachers. 

At  the  end  of  his  term  of  study,  he  is  placed  in  a 
public  hall  upon  a  raised  platform,  where  he  makes  an 
address  in  support  of  some  legal  proposition  that  he 
assumes,  which  is  antagonized  in  short  speeches  by  three 
fellow  students  who  sit  on  a  bench  in  front  of  the  plat- 
form, to  which  he  makes  a  brief  reply,  which  they  admit 
to  be  conclusive.  Thereupon  the  president  of  the 
faculty    approaches,    and    presents    to    him    the    orna- 


338  Addresses 

mental  silk  cap  or  biretta,  such  caps  being  always  worn 
by  lawyers  when  in  court  in  Continental  Europe,  after 
which  he  addresses  the  graduate  as  follows : 

"Receive  this  cap,  which  is  the  emblem  of  liberty ;  and 
now,  having  once  received  it,  you  are  free,  enfranchised 
from  the  yoke  of  authority.  Hereafter  you  will  con- 
sider nothing  as  true  which  you  have  not  drawn  from  the 
very  fountain  of  truth.  Hereafter,  you  will  not  pin  your 
faith  to  the  utterances  of  any  master.  Hereafter  you 
will  oppose  a  hostile  front  to  the  enemies  of  religion, 
of  science,  to  the  enemies  of  humanity,  to  the  enemies  of 
that  liberty  into  which  you  are  now  admitted.  Here  is  a 
book  which  I  now  open,  and  then  close,  as  a  sign  that  you 
shall  consult  your  books  in  order  to  learn  what  men 
have  thought  before  you,  and  that  you  shall  then  close 
them  in  order  that  you  may  think  for  yourself.  And 
now,  receive  this  clasp  of  my  hand,  by  which  our 
ancestors  meant  to  denote  that  concord  and  harmony 
should  exist  among  learned  men ;  not  a  harmony  of  opin- 
ions, which  naturally  differ,  but  a  unity  of  hearts  for 
the  combat  against  error,  and  the  defense  of  the  truth." 

Yes,  the  book  must  be  opened,  and  must  not  be  hastily 
closed ;  for  the  teachings  of  the  great  masters  of  the  law 
furnish  the  best  key  for  opening  of  its  great  treasure 
house  of  knowledge ;  but  it  must  be  closed  at  the  fitting 
time,  for  no  man  can  be  a  successful  lawyer  in  the  best 
sense  of  the  term  who  does  not  do  a  great  deal  of  think- 
ing of  his  own,  without  which  the  reason  of  the  law, 
which  is  its  underlying  and  vivifying  principle,  its 
very  life  blood,  can  never  be  apprehended,  and  without 
which  its  proper  application  must  remain  unknown. 
Reading  and  meditation  must  go  hand  in  hand ;  and  then 
they  will  fortify  and  strengthen  each  other  for  the 
fullest  development  of  individual  capacity. 

There  is  one  thing  that  is  of  far  greater  importance 
than  anything  that  I  have  yet  mentioned,  but  upon 


To  a  Graduating  Law  School  Class      339 

■which  I  can  only  add  a  word;  for  therein  the  patient 
must  heal  himself  as  well  as  he  can.  I  need  not  say  that 
the  moral  conduct  of  life,  in  whatsoever  light  it  may  be 
considered,  involves  the  gravest  and  most  solemn  of  all 
questions. 

The  moral  duties  of  lawyers  are  not  different  from 
those  that  bear  upon  other  men.  Fidelity  to  your  clients, 
courtesy,  fairness  and  friendship  towards  the  members 
of  the  bar  with  whom  you  are  called  to  associate  in  the 
daily  labors  of  life,  respects  for  the  courts,  sympathy 
with  the  oppressed  and  the  suffering,  and  honorable 
and  upright  life,  charity  toward  all  men,  virtues  which 
conduce  so  much  to  human  happiness  are  even  more 
indispensable  to  success  in  the  legal  profession  than 
great  abilities  or  vast  and  varied  learning.  Deviation 
from  duty  in  the  lawyer  is  apt  to  meet  with  sudden  and 
condign  punishment.  Once  let  it  be  known  that  he  is 
dishonest  or  tricky,  and  he  is  at  once  consigned  to  the 
lowest  ranks  of  the  profession,  from  which  he  can  never 
hope  to  emerge.  No  one  can  live  up  to  his  ideal  of 
what  is  right  and  proper;  but  unless  one  has  a  sincere 
and  unfeigned  love  of  truth  and  justice  his  progress  at 
the  bar  will  be  attended  with  difficulty,  and  be  exposed 
to  disaster. 

The  law  wisely  relies  for  its  sanction  rather  on  punish- 
ment than  on  rewards.  So  if  to  the  young  man,  hope 
offers  no  sufficient  spur  to  duty,  he  may  well  reflect  that 
there  is  something  in  a  failure  in  life  that  is  pregnant 
with  pain  and  humiliation.  From  this  prolific  source 
proceed  perhaps  one-half  of  all  the  miseries  of  life.  It 
brings  with  it  disappointment,  poverty,  sickness,  imper- 
fect development,  self  abasement,  shame  and  ten  thou- 
sand other  griefs  that  make  life  wretched,  to  avoid  which 
should  be  the  untiring  effort  of  every  intelligent  being. 
If  the  direful  penalties  could  only  be  known  and  appre- 
ciated beforehand,  there  is  no  reason  to  suppose  that 


340  Addresses 

any  sane  man  would  treat  them  with  indifference.  Some 
men  have  asserted  that  human  happiness  was  an  empty 
delusion,  but  no  one  has  ever  alleged  that  human  pain 
was  but  an  idle  dream.  Whatever  else  may  be  unsub- 
stantial, this  at  least  is  real;  and  it  was  out  of  the  real 
sufferings  of  men  that  Dante  constructed  the  hell  that 
his  pen  described : 

"It    is    not    truth    the    poet    sings, 
That  sorrow's  crown  of  sorrow 
Is  remembering  happier  things." 

The  real  crown  of  sorrow  is  the  remembering  that  if 
it  had  not  been  for  our  own  fault,  the  sorrow  need  never 
to  have  been.  It  is  then  that  affliction  is  attended  with 
remorse,  which  adds  a  still  keener  sting.  Self  inflicted 
wounds  rankle  deepest  and  are  the  most  incurable  of  all. 
Another  poet  has  expressed  the  thought  better  than  I 
can  do : 

"So  the  struck  eagle  stretched  upon  the  plain 
No  more  through  rolling  clouds  to  soar  again, 
Viewed  his  own  feather  on  the  fatal  dart, 
And  winged  the  shaft  that  quivered  in  his  heart; 
Keen  were  his  pangs,  but  keener  far  to  feel, 
He  nursed  the  pinion  that  impelled  the  steel; 
While  the  same  plumage  that  had  warmed  his  nest 
Drank  the  last  life  drop  of  his  bleeding  breast." 

In  the  giving  of  advice,  there  is  often  something 
seemingly  invidious,  as  if  one  assumed  an  air  of  greatly 
superior  knowledge  and  wisdom  concerning  propositions 
that  are  almost  self-evident.  Yet  such  propositions  need 
sometimes  to  be  restated;  and  the  ungracious  assump- 
tion of  fancied  superiority  is  often  far  more  apparent 
than  real. 

Yet  it  might  not  be  quite  improper  for  you  to  suggest 
that  counsel  is  easy,  but  that  practice  is  better;  and  to 
ask  how  we  have  kept  the  precepts  that  we  enjoin. 


To  a  Graduating  Law  School  Class      341 

If  I  could  answer  for  the  members  of  the  bar  whose 
long  day's  work  is  rapidly  drawing  to  a  close,  I  think 
that  they  would  say,  with  a  voice  nearly  approaching  to 
unanimity : 

"The  ideal  that  is  worth  striving  for  soars  far  above 
the  real,  and  we  fall  under  the  heavy  penalties  of  our 
own  condemnation.  We  have  seen  the  right  and  have 
approved  it  too;  and  yet  we  have  followed  the  wrong. 
We  look  back  with  pain  and  regret  over  opportunities 
that  have  been  neglected,  time  that  has  been  wasted, 
duties  unperformed;  and  if  in  the  long  retrospect  we 
find  any  peace  of  mind,  it  is  the  peace  that  survives  when 
the  battle  has  been  lost,  the  peace  that  brooded  over 
Gethsemane,  and  not  that  which  spreads  its  shining 
wings  over  paradise.  But  the  pilot  whose  keel  has  often 
grazed  the  treacherous  rocks,  and  who  has  been  most 
frequently  shipwrecked  on  hidden  reefs,  can  better  coun- 
sel you  of  the  perils  of  the  deep  than  the  mariner  who 
has  only  seen  his  sails  reflected  in  cloudless  seas,  or  who 
has  successfully  avoided  every  danger;  and  it  would  be 
a  great  and  abiding  consolation  to  us,  if  we  could  know 
that  our  manifold  mistakes  and  blunders,  perpetrated 
when  the  heat  and  burden  of  the  day  were  heavy  upon 
us,  might  breed  in  you  that  wisdom  which  we,  ourselves, 
failed  to  grasp." 


TO  A  GRADUATING  CLASS 

Address  Delivered  at  the  University  of  Arkansas, 
Fayetteville,  Ark. 


TO  A  GRADUATING  CLASS 

Although  I  have  lived  in  Arkansas  for  over  30  years, 
and  have  been  in  most  parts  of  it,  yet  I  have  never  before 
my  present  visit  been  in  this  fruitful  and  beautiful  por- 
tion of  it  known  as  the  North  West.  This  has  been 
more  my  misfortune  than  my  fault.  Twice  before  these 
societies  have  kindly  invited  me  to  be  present  at  their 
re-unions.  Once  I  was  kept  at  home  by  sickness,  and 
the  other  time  by  circumstances  over  which  I  had  no 
control. 

I  have  been  here  now  for  myself  and  have  seen  the 
varied  hills  and  valleys,  the  attractive  landscapes,  the 
pleasant  homes,  the  kind  and  hospitable  people,  and  this 
institution  of  learning,  which  has  before  it  so  much  of 
usefulness,  and  I  am  filled  with  gladness  to  think  that 
this  all  belongs  to  our  common  State  in  which  we  have 
lived,  and  in  which  most  of  us  will  die  and  be  buried. 
And  now  that  I  am  here  I  should  be  sorry  if  any  of  you 
have  concluded  that  I  have  come  to  deliver  what  is 
called  an  "oration,"  or  to  be  heard  for  much  speaking. 
I  suppose  that  I  could  hire  a  hall  at  home  and  deliver 
an  ' '  oration ' '  without  the  trouble  of  coming  so  far. 

When  I  came  to  think  about  what  would  most  prob- 
ably be  of  most  interest  to  you,  young  ladies  and  gentle- 
men, I  had  to  go  back  in  my  own  mind  to  that  time  in 
my  life  which  corresponds  with  the  period  in  life  in 
which  you  are  now  living.  I  will  not  say  my  "student 
days,"  because  our  student  days  have  only  fairly  begun 
when  we  are  done  with  school,  and  they  never  end  until 
life  itself  is  ended. 

I  can  bring  those  days  back  to  my  mind  with  a  good 
deal  of  clearness,  and  can  remember  that,  with  all  the 

345 


346  Addresses 

elasticity  that  belongs  to  youth,  I  spent  in  them  a  good 
many  sad  and  despondent  hours.  My  father  and  mother, 
upon  whom  I  might  have  relied  for  assistance  and  advice, 
had  died  long  before.  I  had  neither  wealth  nor  influ- 
ential friends,  nor  any  of  those  aids  that  smooth  one's 
way  towards  success  in  life.  I  was  fully  aware  that  I 
was  but  very  imperfectly  educated,  and  that  I  had  none 
of  those  shining  talents  that  will  command  the  world's 
attention.  I  was  by  no  means  destitute  of  friends;  but 
every  man  and  woman  and  child  needs  a  home,  a  place 
of  refuge,  something  to  fall  back  on  for  new  strength  in 
case  of  misfortune  or  temporary  defeat,  some  central 
hearth  from  which,  whether  far  off  or  near  by,  he  may 
draw  a  certain  amount  of  light  and  warmth.  This  I  had 
not.  I  felt  that  I  had  to  go  out  in  the  world  and  fight 
life 's  battle  single  handed,  and  that  the  odds  were  against 
me  on  every  side.  Every  available  space  seemed  to  be 
already  occupied,  every  seat  taken. 

So,  when  I  looked  at  the  future,  it  often  seemed  to  me 
to  be  as  dreary  as  a  rainy  sea  covered  with  gloomy  clouds. 
I  felt  a  sense  of  loneliness  and  insufficiency ;  as  if  I  had 
a  work  to  do  and  no  one  to  show  me  how  to  do  it,  no 
tools  to  do  it  with,  and  neither  skill  nor  training;  and 
yet,  somehow  or  other  the  work  had  to  be  done,  for  over 
me  stood  Fate,  that  stern  task-master  that  hears  no  idle 
excuses. 

Perhaps  I  was  to  blame  for  having  such  feelings.  My 
case  was  not  nearly  so  hard  as  that  of  many  young  men, 
who,  by  their  own  unaided  efforts,  have  attained  to  a 
degree  of  success  which  I  can  never  hope  to  reach;  but 
I  did  have  those  feelings;  and  at  times  I  suffered  from 
them  keenly. 

Nor  do  I  think  that  I  could  have  been  singular  in  that 
respect.  It  seems  to  me  probable  that  some  of  you  young 
men  may  have  had  or  may  hereafter  have  feelings  not 
unlike  those  of  which  I  have  spoken. 


4 

To  a  Graduating  Class  347 

Reflecting  on  those  things  before  I  came  here,  it  seemed 
to  me  that  I  should  better  repay  your  kindness  by 
speaking  to  you  to-night,  in  the  simplest  and  plainest 
language  that  I  can  use,  on  the  subject  that  so  much 
engaged  my  thoughts  at  your  time  of  life.  I  do  not  know 
that  anything  that  I  have  to  say  can  interest  you;  but 
it  seems  to  me  that  the  subject  is  one  of  as  much  interest 
to  you  as  any  other  that  I  could  select.  I  confess  that 
I  should  be  glad  if  you  should  be  pleased  with  what  I 
have  to  say;  particularly  if  any  of  you  should  be  able 
to  find  in  anything  that  I  shall  say  any  grain  of  comfort 
or  encouragement. 

It  is  not  a  matter  of  indifference  to  me  as  to  how  you 
get  through  the  world;  young  people  often  think  that 
older  people  have  no  sympathy  with  them;  but  such  is 
far  from  being  the  case.  On  the  contrary  our  interest 
increases  with  increasing  years.  You  know  that  we 
naturally  become  more  attached  to  things  when  we  know 
that  we  shall  soon  part  from  them.  A  friend  never 
seems  so  dear  to  us  as  when  we  become  aware  of  the  fact 
that  after  a  little  while  we  shall  look  upon  his  face  no 
more.  A  wise  man  does  not  have  to  be  very  old  before 
he  begins  to  perceive  that  his  horizon  is  growing  nar- 
rower and  that  the  shades  of  evening  are  beginning  to 
steal  across  the  landscape.  He  begins  to  prize  each 
re-union  of  friends,  every  kindly  memory  of  the  past, 
more  and  more  as  the  days  go  by.  In  youth  life  some- 
times seemed  to  him  to  be  a  comedy,  a  jest,  a  dream; 
some  odd  medley  which  might  have  been  brought  about 
by  chance  and  which  has  but  little  meaning;  but  as  he 
gets  older  he  seems  to  discover  that  it  has  a  meaning  in 
every  part,  though  that  meaning  is  so  deeply  hidden  that 
the  heart  of  man  cannot  wholly  search  it  out.  What  is 
it  that  has  kept  these  hearts  of  ours,  mere  things  of  flesh, 
beating  on  and  on,  even  during  the  night  when  we  slept 


348  Addresses 

without  ever  forgetting  themselves  or  stopping  for  a  sin- 
gle moment? 

Though  man  is  in  a  large  measure  the  architect  of  his 
own  fortune,  yet  he  sees  that  many  of  the  most  moment- 
ous and  important  things  in  his  life  have  depended  on 
events  so  inconceivably  trivial,  that  at  the  time  that 
they  took  place  they  were  not  thought  worthy  of  the 
slightest  notice.  Through  the  merest  indifference  he 
goes  down  one  street  instead  of  another  and  by  reason 
of  that  and  that  alone  he  meets  a  future  friend  or  wife 
whose  influence  over  him  is  to  be  always  afterwards  pre- 
dominent  in  many  respects  for  good  or  for  evil.  A  single 
friendly  or  unfriendly  word,  a  single  averted  or  a  single 
kindly  glance,  and  the  current  of  a  man's  destiny  is 
changed  forever.  For  himself  he  knows  that  the  chances 
for  any  sudden  change  of  such  immense  importance, 
save  by  sickness  or  death,  are  greatly  diminished.  In 
looking  backward  he  sees  that  unconsciously,  he  knows 
not  how,  he  has  been  in  direct  communication  with  that 
unseen  world  upon  whose  brink  we  walk  from  the  cradle 
to  the  grave.  Of  many  things  that  have  happened  in 
his  life,  he  is  bound  to  say  that  they  are  not  of  man's 
doing.  Though  men  may  have  had  much  to  do  with 
the  actual  results,  yet  it  is  obvious  that  those  results 
were  not  foreseen  by  them,  or  counted  upon  by  them  in 
any  way. 

Many  things  come  to  have  a  meaning  to  one  in  advanc- 
ing years  which  they  can  never  have  to  one  who  is  much 
younger.  I  doubt  whether  there  is  any  young  man  now 
living  who  can  have  anything  like  a  realizing  sense  of 
the  full  import  of  the  expression  "a  failure  in  life." 
The  reason  is  not  that  they  are  wanting  in  sense  or 
capacity;  for  I  think  that  in  proportion  there  are  as 
many  old  fools  as  there  are  young  ones;  but  they  feel 
themselves  to  be  full  of  strength  and  energy  and  hope, 
and  they  think  that  if  they  get  into  trouble  they  can 


To  a  Graduating  Class  349 

either  get  out  of  it  again,  or  that  they  can  shake  it  off. 
They  cannot  realize  that  when  the  trouble  comes  as  a 
strong  man,  it  may  come  at  a  time  when  their  stock  of 
vivacity,  strength,  energy  and  hope  has  been  much 
impaired.  It  is  as  impossible  for  them  to  have  a  realizing 
sense  of  that  fact  as  it  is  for  a  man  with  good  eye-sight 
to  realize  himself  as  a  blind  man.  It  is  not  his  fault 
that  he  cannot  do  so;  the  effort  simply  transcends  his 
faculties. 

My  pursuit  in  life  has  brought  me  in  contact  with 
many  men  who  have  failed  in  life  more  or  less;  and  yet 
I  have  not  seen  the  worst  by  far;  because  I  have  seen 
but  little  of  the  criminal  classes;  but  I  have  seen  full 
enough  to  enable  me  to  say  that  if  young  men  could  only 
have  a  fair  conception  of  what  is  implied  in  a  failure  in 
life,  such  a  thing  as  a  failure  in  life  would  be  almost 
unknown ;  if  they  could  only  know  the  long  heart  ache, 
the  sense  of  pain  and  humiliation,  the  sleepless  nights 
that  stamp  themselves  on  the  face  and  that  whiten  the 
hair.  In  such  cases  it  is  not  generally  true  that  the  man 
suffers  so  much  for  himself.  If  he  stands  by  himself 
alone  the  case  is  not  so  hard,  though  it  may  be  hopeless ; 
but  very  few  men  stand  alone;  and  when  a  man  goes 
down  in  the  world  he  very  commonly  carries  some  one  or 
more  down  with  him ;  his  wife  who  had  willingly  trusted 
her  life  to  his  hands,  his  innocent  children,  who  look  up 
to  him  for  protection  and  support ;  and  not  infrequently 
he  brings  loss  and  sorrow  to  friends  who  had  confided 
in  his  honor. 

Very  generally,  too,  any  serious  failure  in  life  brings 
with  it  some  taint  of  moral  degradation.  Very  often 
the  fine  sense  of  honor  is  blunted,  and  men  will  do  things 
that  under  happier  surroundings  they  would  have 
scorned  to  do.  Instead  of  looking  on  life  as  a  field  for 
high  endeavor  and  noble  ends,  they  come  to  see  only 
the  petty  things  in  it,  and  the  dark  side  of  it. 


350  Addresses 

If  Shakespeare  is  called  the  poet  of  nature  it  is  not 
only  because  he  is  always  in  accord  with  Nature,  but 
because  many  of  his  beauties  are  hidden  like  many  of 
the  beauties  of  Nature,  requiring  attention  before  they 
can  be  seen.  His  genius  not  only  goes  directly  to  the 
mark,  but  it  is  always  kept  in  strict  subjection  to  all 
surrounding  conditions. 

So  my  young  friends  will  remember  that  it  is  Macbeth 
who,   speaking   contemptuously   of   everything  in  life, 

says: 

"  *     *     *    all  our  yesterdays  have  lighted  fools 
The  way  to  dusty  death.    Out,  out,  brief  candle! 
Life's  but  a  walking  shadow;  a  poor  player, 
That  struts  and  frets  his  hour  upon  the  stage, 
And  then  is  heard  no  more;  it  is  a  tale 
Told  by  an  idiot,  full  of  sound  and  fury, 
Signifying  nothing." 

This  language  would  not  have  been  suitable  to  any 
other  character  in  Shakespeare.  It  was  the  language  of 
despair ;  but  it  would  not  have  suited  for  the  despair  of 
Othello,  or  that  of  Romeo,  or  that  of  King  Lear,  a  despair 
equally  deep  and  hopeless;  but  utterly  different.  Nor 
would  it  have  been  suited  to  Macbeth  himself  in  his 
better  days  when  he  said: 

"I  dare  do  all  that  may  become  a  man; 
Who  dares  do  more  is  none." 

But  now  it  was  finely  suited  to  a  man,  who,  having 
failed  in  life  in  every  way,  had  been  eaten  into  by  that 
dry  rot,  which  makes  him  carp  at  everything,  and  poisons 
his  mind  against  all  that  is  good;  to  a  man  who  said  of 
himself: 

"My  way  of  life 
Is  fallen  into  the  sere,  the  yellow  leaf; 
And  that  which  should  accompany  old  age, 
As  honor,  love,  obedience,  troops  of  friends, 


To  a  Graduating  Class  351 

I  must  not  look  to  have;  but  in  their  stead 
Curses,  not  loud,  but  deep,  mouth-honor,  breath 
Which  the  poor  heart  would  fain  deny  and  dare  not." 

I  know  that  many  a  modest  and  deserving  young  man 
is  ready  to  despair,  saying  to  himself:  " Being  equally 
without  wealth  or  birth,  or  influential  friends  or  health, 
or  shining  abilities,  I  see  a  great  shadow  that  lies  on  my 
path,  and  I  do  not  know  how  it  will  ever  be  lifted  and 
my  soul  is  dark  within  me. ' ' 

I  freely  admit  that  the  outlook  is  not  bright,  and  yet 
if  that  same  young  man  has  or  will  acquire  the  power 
of  self-control,  patience  and  industry,  I  would  willingly 
pit  him  against  all  the  pampered  scions  of  wealth  and 
fortune.  If  you  will  look  over  the  lives  of  the  great 
inventors  and  benefactors,  men  who  have  done  the  most 
good  for  our  race,  you  will  find  that  most  of  them  have 
risen  from  a  far  greater  degree  of  obscurity  than  that 
which  surrounds  any  of  you.  Poverty  is  the  mother  of 
thrift;  and  it  is  only  under  the  influence  of  adversity 
that  the  human  mind  bears  its  best  fruit. 

It  is  said  that  young  people  go  to  school  in  order  to 
"equip"  themselves  for  the  duties  of  life.  The  phrase 
may  do  well  enough;  but  as  the  act  of  equipping  refers 
to  the  putting  on  of  something  external,  it  is  not  quite 
accurate;  for  the  learning  that  you  put  on  outside  will 
do  you  more  harm  than  good.  The  learning  that  will  be 
a  real  source  of  strength  to  you  is  that  which  you  thor- 
oughly assimilate  and  make  a  part  of  yourself;  some- 
thing that  does  not  show  itself  in  big  words  or  in  pedantic 
snatches  from  living  or  dead  languages;  nothing  that 
smacks  of  sham  and  pretence,  but  something  that  shall 
clear  your  moral  vision  until  you  can  see  the  natural 
beauty  of  simplicity  of  manners,  simplicity  of  speech 
and  simplicity  of  life. 

It  is  clear  that  the  conduct  of  life  is  a  separate  science 
by  itself,  the  most  important  of  all  sciences,  the  sum 


352  Addresses 

of  all  sciences.  Unless  you  can  get  this,  all  your  learn- 
ing will  be  of  no  avail.  It  is  a  science  that  you  will 
need  in  its  actual  application  every  day  and  every  hour 
of  your  life,  when  you  are  not  asleep.  It  embraces  not 
only  all  other  sciences,  but  it  also  includes  the  whole 
circle  of  human  virtues ;  and  it  is  precisely  in  accordance 
with  your  proficiency  in  it  that  you  will  take  your  rank 
as  a  man. 

Every  kind  of  applied  science  requires  training  and 
discipline.  The  knowledge  that  you  will  get  here  in  the 
school,  important  as  that  may  be, — and  it  is  a  matter 
of  extreme  importance — is  of  far  less  value  than  the 
mental  training  which  comes  with  it.  The  man  who  is 
turned  out  in  the  best  plight  to  meet  all  the  rubs  of  life 
is  the  man  of  the  highest  discipline. 

I  remember  not  many  months  ago  that  I  saw  far  out 
at  sea  a  naval  training  ship,  on  the  deck  of  which  there 
•were  a  hundred  or  so  of  young  men  going  through  their 
morning  evolutions.  It  seemed  to  be  rather  a  dull  and 
tedious  routine.  There  was  no  land  in  sight,  no  sign  of 
tree  or  flower,  or  human  habitation,  nothing  but  the 
dreary  waste  of  waters,  and  sometimes  a  passing  sail. 
It  seemed  to  me  to  be  a  sad  fate.  I  felt  such  an  interest 
in  them  that  I  got  a  spy  glass  so  as  to  bring  them  nearer ; 
and  then  they  looked  so  strong,  so  bright  and  so  manly, 
that  I  felt  that  any  one  might  envy  them.  They  were 
there,  out  on  the  lonely  sea,  preparing  themselves  for 
future  labors,  breathing  the  salubrious  atmosphere  of 
duty;  and  I  concluded  that  they  compared  most  favor- 
ably with  the  fashionable  youths  that  I  had  often  seen 
at  our  watering  places,  dawdling  about  with  high 
heeled  boots,  microscopical  moustaches,  twirling  little 
walking  canes,  with  their  hands  as  soft  as  cotton  and 
their  heads  a  great  deal  softer. 

Of  course  there  are  degrees  in  success ;  but  there  is  no 


To  a  Graduating  Class  353 

doubt  but  that  almost  every  man  may  reach  a  reasonable 
degree  of  success.  There  is  to-day  in  France  a  man  still 
comparatively  young  by  the  name  of  Xavier  Thiriat, 
whose  record  is  worthy  of  being  mentioned.  When  he 
was  a  small  boy  he  rescued  a  little  girl  from  drowning 
one  very  cold  day,  by  jumping  into  the  water  and  help- 
ing her  to  reach  the  shore.  The  result  of  his  experience 
was  that  he  became  paralyzed  so  that  he  has  never  been 
able  to  walk  since.  Under  these  strangely  sad  and  for- 
lorn circumstances  the  boy  educated  himself,  and  Xavier 
Thiriat  has  published  several  books  in  the  last  few  years 
which  have  given  him  a  recognized  standing  in  both 
literature  and  science.  Such  an  instance  as  this  puts  to 
shame  our  better  opportunities. 

Very  few  men  are  possessed  of  genius.  There  are  very 
few  born  poets  or  orators,  or  actors  or  musicians;  but 
every  man  claims  to  have  a  quality  which  really  almost 
every  man  does  actually  possess,  a  very  valuable  quality, 
which  may  be  wonderfully  improved  by  cultivation.  I 
mean  that  quality  which  in  English  we  call  by  the  homely 
but  expressive  name  of  ' '  common  sense. ' '  That  was  the 
quality  that  went  to  the  making  of  Benjamin  Franklin 
and  George  Washington.  Franklin  started  out  poor 
and  uneducated  and  friendless ;  he  lived  to  be  spoken  of 
with  honor  the  whole  world  over,  and,  as  he  said,  to  dine 
with  princes.  He  died  with  the  proud  fame  of  a  patriot, 
a  statesman,  a  man  of  learning,  of  science  and  a  bene- 
factor of  his  race.  Washington,  looking  to  actual  results, 
was  clearly  the  greatest  man  that  ever  lived.  A  poor, 
half  educated  country  boy  in  an  obscure  English  colony, 
he  succeeded,  with  wretched  resources,  in  humbling  the 
proudest  military  power  on  the  face  of  the  globe ;  and  in 
cementing  and  establishing  in  the  new  world,  a  nation- 
ality compared  with  which  Rome  in  her  best  estate  was 
but  a  trivial  creation.  If  you  will  study  the  lives  of  those 


354  Addresses 

great  men,  you  will  find  that  their  success  was  due  to 
the  fact  that  early  in  life  they  learned  the  habits  of  self 
discipline  and  self  control.  Those  are  the  things  that 
work  miracles.  If  you  go  into  a  circus  you  will  see  an 
acrobat  do  things  that  you  could  no  more  do  than  you 
could  fly.  As  hard  as  it  seems  to  you  to  do  them,  there 
was  a  time  that  it  seemed  just  as  hard  to  him.  It  is  only 
by  daily  training  and  confining  his  efforts  to  one  thing 
that  he  has  at  last  succeeded  in  entertaining  and  aston- 
ishing his  audience ;  and  it  is  just  that  kind  of  assiduity 
of  purpose  that  will  be  required  of  you  in  any  calling 
which  you  may  adopt. 

If  a  young  man  in  the  formation  of  his  character 
learns  the  gift  of  self  mastery  and  cultivates  habits  of 
honesty,  good  nature,  temperance,  industry  and  patient 
energy,  he  has  already  conquered  the  world.  Without 
these  he  may  fail  beyond  his  darkest  reckoning.  I  doubt 
whether  homilies  and  copy-book  platitudes  about  external 
acts  do  generally  as  much  good  as  the  authors  of  them 
expect.  You  cannot  make  a  man  virtuous  and  lovable 
by  paying  attention  to  externals.  That  has  been  tried 
and  has  failed.  Philip  Stanhope  wrote  certain  letters 
which  are  known  as  Chesterfield's  "Letters  to  his  Son." 
They  have  been  published  and  have  had  a  very  extensive 
sale.  Doubtless  most  of  you  have  seen  them  or  read 
them.  In  them  the  author  dwelt  admirably  on  externals 
of  conduct.  He  appealed  to  no  matters  of  principle,  to 
no  generous  sentiment  of  the  heart.  He  did  not  ask 
that  his  son  should  be  a  good  man  or  a  kind  man  in  fact, 
but  only  that  he  should  have  the  outward  seeming  of 
gentleness  and  goodness.  He  was  a  gentleman  in  appear- 
ance. He  might  as  well  have  tried  to  make  a  gentleman 
out  of  canvas  and  sawdust.  The  result  was  unsatis- 
factory in  the  last  degree.  That  result  was  summed  up 
by  a  poet  of  the  day  in  the  following  lines : 


To  a  Graduating  Class  355 

"Vile  Stanhope — demons  blush  to  tell — 
In  twice  two  hundred  places 
Has  shown  his  son  the  road  to  hell, 
Escorted  by  the  Graces. 

"But  little  did  the  ungenerous  lad 
Concern  himself  about  them; 
For  base  degenerate,  meanly  bad, 
He  sneaked  to  hell  without  them." 

Perhaps  Shakespeare  understood,  better  than  any  one 
else  that  there  could  be  no  successful  life  if  it  is  lived 
in  externals  chiefly ;  for  he  summed  up  his  advice  to 
the  young  by  saying : 

"Above  all,  to  thine  own  self  be  true; 
And  it  must  follow  as  the  night  the  day, 
Thou  canst  not  then  be  false  to  any  man." 

Again  he  said : 

"I  charge  thee  fling  away  ambition. 
By  that  sin  fell  the  angels." 

"Love  thyself  last;  cherish  those  hearts  that  hate  thee; 
Corruption  wins  not  more  than  honesty. 
Still  in  thy   right  hand  carry  gentle  peace 
To  silence  envious  tongues;  be  just  and  fear  not. 
Let  all  the  ends  thou  aimst  at  be  thy  country's, 
Thy  God's  and  truth's." 

How  impressive  these  words  ought  to  be  when  we 
reflect  that  they  proceeded  from  a  man  who  had  a  more 
comprehensive  and  intimate  knowledge  of  human  life 
than  all  the  men  now  living  put  together !  To  the  young 
man  who  would  heed  them,  they  would  be  as  a  beacon 
on  a  rock,  to  guide  his  wandering  bark  across  all  the 
shifting  seas  of  life. 

Perhaps  you  would  ask  me  what  I  mean  by  a  success- 
ful life.    The  question  is  a  pertinent  one.    I  am  told  that 


356  Addresses 

on  such  occasions  as  these,  persons  who  address  students 
sometimes  tell  them  that  if  they  will  exercise  all  of  the 
cardinal  virtues,  combined  with  studious  habits,  and 
great  energy,  they  may  get  to  be  presidents,  or  governors 
of  States.  I  do  not.  I  do  not  know  that  holding  out 
such  hopes  can  have  any  considerable  effect  on  any 
young  man.  I  should  think  that  it  would  be  better  for 
him  to  cherish  hopes  a  little  more  secure,  and  I  will  add, 
a  little  higher;  for  a  man  may  well  be  a  President  of 
the  United  States,  and  yet  his  life  may  be  an  utter 
failure  in  the  proper  sense  of  the  term.  As  there  is  no 
purely  external  standard  of  duty,  so  there  is  no  purely 
external  standard  of  success.  A  man  may  be  a  very 
great  man,  he  may  be  wonderfully  successful  in  some 
one  thing;  he  may  fill  an  important  chapter  in  history, 
and  he  may  fill  the  world  with  his  fame ;  and  yet  on  the 
whole  his  life  may  be  an  ignominious  failure.  Alexander 
the  Great  conquered  many  countries ;  and  it  is  said  that 
he  wept  for  new  worlds  to  conquer,  but  could  not  conquer 
himself.  Napoleon  destroyed  many  thousands  of  men 
to  satisfy  a  greedy  ambition,  seemingly  without  one 
sample  of  conscience  or  one  pang  of  regret;  and  then 
died  in  confinement  and  exile.  Notwithstanding  the 
astonishing  character  of  these  performances,  the  lives 
of  these  men  were  nothing  more  than  sublime  failures, 
mere  travesties  on  what  a  man's  life  should  be. 

On  the  other  hand,  mere  adversity  and  ill  fortune,  how- 
ever great,  provided  they  do  not  proceed  from  our  own 
faults,  will  not  constitute  an  unsuccessful  life.  Socrates 
died  by  the  hand  of  the  common  executioner,  and  it  is 
said  that  St.  Paul  died  in  the  same  way ;  but  no  one  can 
say  that  they  lived  unsuccessful  lives ;  for  their  influence 
on  the  world  for  good  still  lives,  and  will  live  as  long  as 
the  world  shall  endure.  Latimer  and  Ridley,  and  John 
Huss  and  Jerome  of  Prague,  and  all  the  noble  army  of 
martyrs  have  not  lived  unsuccessful  lives,  though  they 


To  a  Graduating  Class  357 

died  at  the  stake ;  for  by  their  deaths  they  bore  witness 
for  all  time  to  great  moral  truths.  There  are  also  many 
men  and  more  women,  who  are  poor,  ignorant  and 
obscure,  who  accomplish  but  little  in  the  world  that  any- 
one can  see,  who  are  forgotten  very  soon  after  they  die, 
and  who  yet  have  not  lived  unsuccessful  lives;  because 
they  have  gained  the  victory  over  themselves,  which  is 
the  highest  victory  that  any  human  being  can  achieve, 
because  they  have  lived  gentle  and  honorable  and  stain- 
less lives,  and  have  done  what  they  could  to  make  the 
world  better  and  happier. 

I  do  not  mean  to  say  that  these  last  had  achieved  a 
complete  success  in  life,  for  poverty,  to  a  certain  extent 
implies  defeat.  It  will  not  do  for  anyone  to  enter  upon 
life  with  a  contempt  for  the  value  of  money.  Every 
dollar  that  a  man  earns  by  honest  labor  is  a  trophy  of 
which  he  has  a  right  to  be  proud.  There  are  but  few 
things  that  hinder  one  more  in  his  career  of  usefulness 
than  to  be  in  debt  or  to  labor  under  any  serious  finan- 
cial embarrassment.  It  deadens  his  finer  sensibilities,  it 
destroys  his  peace  of  mind,  and  not  unfrequently  it 
undermines  his  principles.  The  advice  given  by  the  poet 
Burns  to  a  young  friend  was  perfectly  sound,  sensible 
and  just  when  he  said: 

"To  catch  Dame  Fortune's  golden  smile 
Assiduous  wait  upon  her, 
And  gather  gear  by  every  wile 
That's  justified  by  honor; 
Not  for  to  hide  it  in  a  hedge, 
Nor  for  a  train  attendant; 
But  for  the  glorious  privilege 
Of  being  independent." 

Wealth,  social  standing  and  learning  are  all  very 
important  elements  in  a  successful  life ;  but  they  are  not 
indispensable  elements.  The  real  and  indispensable  ele- 
ment, without  which  there  can  be  no  success  in  life,  is 


358  Addresses 

the  result  of  that  conflict  that  takes  place  in  every  man's 
bosom  between  motives  that  are  good  and  those  that  are 
bad,  between  objects  that  are  high  and  those  that  are 
low.  This  is  the  true  battle  of  life.  Often  you  can  tell 
at  a  glance  when  you  first  meet  a  man  how  the  battle  has 
gone.  The  haggard  look  of  dissipation,  or  the  furtive 
look  of  evil  import,  tell  that  the  battle  has  been  lost 
irretrievably.  Sometimes  you  may  behold  a  face  that 
tells  you  that  the  contest  has  been  definitively  won ;  but 
with  most  men  the  battle  goes  on  with  varying  fortunes 
as  long  as  life  lasts. 

But  the  brunt  of  the  battle  is  fought  either  in  boy- 
hood or  when  a  man  is  very  young.  The  great  prob- 
ability is  that  with  each  one  of  you  it  will  be  fought  and 
will  be  practically  won  or  lost  in  a  very  few  years. 

The  great  misfortune  is  that  it  is  very  often  fought 
and  ended  when  the  youth  is  not  aware  that  there  is  any 
such  battle  going  on.  He  has  vague  aspirations  for  suc- 
cess and  for  usefulness  in  life,  and  he  thinks  that 
later  on  he  is  really  going  to  do  something.  In  the 
meantime,  without  thinking  much  about  it,  he  is  forming 
first  one  idle  or  vicious  habit  and  then  another.  He 
does  not  look  on  these  habits  as  being  anything  more 
than  a  mere  matter  of  temporary  youthful  indulgence, 
which  he  will  quit  whenever  he  thinks  proper  to  do  so. 
If  he  sometimes  reproaches  himself  with  these  things,  he 
says  to  himself  that  he  is  going  to  settle  down  after  a 
while.  He  thinks  that  he  is  popular,  and  that  no  one 
notices  his  little  faults.  And  herein  he  is  mistaken.  The 
world  is  always  on  the  lookout  for  actual  merit ;  and  if  a 
young  man  has  pluck,  energy  and  self  control,  based  on 
principle,  it  will  soon  be  found  out;  and  people  will 
repose  confidence  in  him  and  that  confidence  is  capital 
in  life.  Men  will  be  anxious  to  form  business  alliances 
with  him.  Young  ladies  will  be  attracted  by  those  quali- 
ties that  command  esteem ;  and  he  will  most  likely  marry 


To  a  Graduating  Class  359 

a  good  and  sensible  girl,  which  will  be  the  most  sensible 
thing  he  ever  did,  and,  in  doing  so,  he  will  draw  the 
highest  prize  in  the  lottery  of  life. 

On  the  other  hand,  if  a  young  man  has,  from  simple 
heedlessness  or  otherwise,  fallen  into  habits  of  vice  or 
indolence,  he  is  discounted  just  in  the  same  proportion. 
If  he  thinks  that  his  faults  are  not  noticed,  he  is  like 
the  ostrich  which  hides  its  head  in  the  sand  and  thinks 
that  nobody  can  see  him.  If  the  world  has  a  keen  eye 
for  merit,  it  has  a  still  keener  eye  for  demerit.  As  hard 
as  it  is  to  break  off  a  bad  habit,  it  is  a  great  deal  harder 
to  conceal  it.  After  a  while  the  young  man,  who  prob- 
ably really  possesses  talents  and  some  fine  traits  of  char- 
acter, concludes  to  reform.  Perhaps  he  thinks  that  he 
will  marry  and  do  better.  He  makes  himself  believe  that 
he  is  going  to  do  so,  and  he  makes  some  fair,  trusting 
young  girl  believe  the  same  thing.  When  he  tries  to 
reform  he  finds  that  the  tide  is  against  him.  People  have 
lost  faith  in  him,  and  he  has  lost  faith  in  himself.  It 
is  not  only  that  he  has  formed  bad  habits;  but  those 
habits  have  sapped  away  all  of  his  moral  strength,  and 
all  his  powers  of  self  control.  He  is  like  Gulliver,  bound 
down  to  the  ground  by  the  threads  of  the  Lilliputians. 
He  has  promised  his  wife  to  love  and  protect  her.  With 
a  degree  of  meanness  that  would  have  been  incredible 
to  him  in  his  better  days,  he  ends  by  breaking  her  heart. 
His  children  grow  up  in  poverty,  ignorance  and  vice; 
and  probably  when  at  last  he  comes  to  die  and  be  buried, 
and  a  preacher  preaches  his  funeral,  he  cannot  think  of 
anything  better  to  say  of  him  than  that  generally  he 
was  one  of  the  first  men  at  a  fire. 

There  are  a  good  many  men  that  start  out  with  the 
idea  that  a  good  way  to  get  along  is  to  humbug  the 
world;  and  they  say  that  the  world  likes  to  be  hum- 
bugged, and  they  refer  to  Barnum  and  other  characters. 
One  would  think  that  the  effrontery  of  a  man  who  would 


360  Addresses 

publish  a  book  filled  with  details  as  to  how  he  had  lied, 
and  deceived,  and  swindled  the  public  systematically 
through  a  long  series  of  years,  would  not  excite  much 
admiration.  Occasionally  a  man  of  the  shrewdness  of 
Barnum  obtains  at  the  same  time  wealth  and  the  con- 
tempt of  all  sensible  men  by  devious  tricks ;  but  the  most 
of  those  who  start  out  on  the  same  path  are  landed 
before  long  in  prison ;  and  for  one  Barnum  that  succeeds 
you  will  find  five  hundred  that  have  not  succeeded  and 
are  in  the  penitentiary.  It  is  in  that  as  it  is  in  other 
things,  you  never  hear  of  those  who  fail.  They  do  not 
write  books.  On  the  other  hand,  you  will  find  in  New 
York  a  thousand  men  who  have  attained  a  fortune  by 
honest  industry  where  you  will  find  one  Barnum  that  has 
succeeded. 

There  is  a  man  in  London  by  the  name  of  Whitely 
who  is  called  the  "Universal  Provider,"  because  he  pro- 
fesses to  furnish  anything  in  the  world  that  a  man  wants 
from  an  English  manorial  estate  or  a  ship  of  the  line 
down  to  a  needle.  He  has  one  of  the  largest  mercantile 
houses  in  the  whole  world.  With  the  exception  of  a  sim- 
ilar institution  in  Paris,  I  have  never  seen  anything  to 
compare  with  his  establishment,  which  covers  a  great 
many  acres.  I  saw  it  stated  the  other  day  that  in  the 
interior  of  it  he  has  in  his  employ  over  5,000  persons, 
enough  to  make  a  considerable  town,  besides  a  great 
many  carriers  and  others  employed  outside.  In  1863 
he  started  for  London  from  his  native  village  in  Eng- 
land with  about  $7.50  of  our  money.  An  uncle  of  his 
offered  him  a  check  for  twenty-five  pounds,  but  he 
declined  it,  saying  that  he  was  young,  and  intended  to 
make  his  own  way  in  the  world.  He  began  as  a  com- 
mercial traveller,  and  eventually  set  up  a  small  shop  for 
the  sale  of  articles  of  ladies'  wear,  with  a  net  capital  of 
$3,500,  in  London,  the  wealthiest  city  in  the  world.  He 
formed  a  resolution  that  he  would  sell  only  good  goods 


To  a  Graduating  Class  361 

and  at  as  low  a  price  as  they  could  be  sold,  and  that  all 
of  his  business  should  be  conducted  on  principles  of  the 
strictest  integrity.  It  was  soon  found  that  his  customers 
could  rely  on  anything  that  was  told  them  in  his  house, 
and  that  they  could  send  an  order  to  him  for  any  article 
without  fear  of  being  deceived.  Today  his  estate  is 
estimated  by  millions  of  pounds,  every  one  of  which  has 
been  honestly  gained. 

This  is  certainly  a  very  extraordinary  case;  but  it 
illustrates  a  very  important  principle,  and  that  is  that 
the  man  who  has  the  highest  skill  in  his  calling  and  the 
highest  integrity,  in  any  community  in  which  he  may  be 
placed,  is  in  no  danger  of  making  a  failure  in  life. 
"Corruption  wins  not  more  than  honesty." 

I  have  dwelt  somewhat  at  length  on  the  necessity  of 
self  control.  Without  that  a  man  is  like  a  ship  without 
a  rudder.  There  is  another  quality  that  needs  to  be 
cultivated  with  extreme  care,  and  that  is  self  reliance. 
There  is  one  part  of  Shakespeare's  advice  to  a  young 
man  that  is  extremely  valuable.    He  says: 

"Take  each  man's  censure,  but  reserve  thy  judgment." 

In  Shakespeare's  day  the  word  "censure,"  true  to 
its  derivation,  meant  opinion;  so  the  meaning  is: 
"Take  each  man's  advice,  but  think  for  yourself." 
Decision  of  character  is  an  extremely  valuable  quality. 
A  man's  friends  are  to  him  better  than  riches;  their 
advice  is  often  of  priceless  value ;  but  as  they  can  rarely 
see  all  that  he  sees,  it  is  still  necessary  that  a  man  should 
be  able  to  form  his  own  judgments,  and  that  he  should 
possess  the  firmness  and  the  fortitude  to  act  upon  them. 

I  have  tried  to  convey  to  you  the  idea  that  the  struggle 
which  we  must  have  in  this  life  is  rather  with  ourselves 
than  with  the  outside  world.  A  young  man  is  apt  to 
think  that  he  must  go  to  work  to  get  friends  and  to 
make  money;  but  if  he  will  only  do  the  work  that  is 


362  Addresses 

before  him  diligently,  and  will  stick  to  it  faithfully,  and 
will  live  honestly,  kindly  and  charitably  with  his  fellow 
men,  avoiding  all  cant  and  hypocrisy,  making  himself 
sure  that  his  good  qualities,  such  as  they  are,  are  genu- 
ine, not  pinchbeck,  not  put  on  for  show,  friends  and 
money  will  both  come  in  due  time.  The  only  money 
that  will  ever  do  you  any  good  is  that  which  comes 
honestly;  the  only  friends  that  will  ever  be  of  any  use 
to  you  are  those  that  come  to  you  naturally. 

I  have  dwelt  so  much  on  the  necessity  of  self  control, 
that  I  am  afraid  that  some  of  you  may  go  off  thinking 
that  I  mean  to  recommend  a  systematic  course  of  self 
examination.  Nothing  is  farther  from  my  thoughts. 
I  have  heard  men  advise  young  people  to  think  over  every 
night  everything  that  they  had  done,  or  said,  or  thought, 
during  the  day,  and  to  reflect  on  them  all  in  order  to  see 
how  far  they  had  done  right  and  how  far  wrong.  Such 
a  system  of  double  entry  moral  bookkeeping  might  do 
for  a  monk  in  a  cloister;  but  for  a  man  who  has  to  do 
with  actual  life,  it  would  lead  him,  if  he  were  a  man  of 
sense,  either  to  a  lunatic  asylum  or  to  death  by  suicide. 

I  have  known  young  men  who  were  always  whining 
because  they  were  not  good  enough;  but  I  have  never 
known  one  that  was  worth  a  row  of  beans.  That  condi- 
tion of  mind  is  a  morbid  and  an  unhealthy  one.  If  St. 
Paul,  or  Martin  Luther,  or  John  Wesley  had  always 
been  whining  in  that  way,  they  would  never  have  done 
any  good.  They  would  have  been  compound  and  varie- 
gated failures.  That  kind  of  self  anatomy  is  fatal  in  its 
efforts.  When  a  man  has  made  up  his  mind  as  to  what 
are  good  principles  and  is  resolved  to  stand  by  them,  the 
less  he  thinks  of  himself  after  that  the  better.  Nor 
should  he,  because  he  makes  a  blunder  or  commits  a  fault, 
be  unutterably  cast  down.  No  man  ever  lived  without 
faults.  They  are  natural  and  inevitable,  and  they  are  a 
part  of  our  training.    Longfellow  said : 


To  a  Graduating  Class.  363 

"Saint  Augustine!  well  hast  thou  said, 
That  of  our  vices  we  can  frame 
A  ladder,  if  we  will  but  tread 
Beneath  our  feet  each  deed  of  shame." 

And  after  him  Tennyson  said: 

"I  hold  it  truth  with  him  that  sings 
To  one  clear  harp  in  divers  tones, 
That  man  may  rise  on  stepping  stones 
Of  their  dead  selves  to  higher  things." 

The  truth  is  that  the  greater  part  of  any  useful  life 
must  consist  of  action.  One  should  not  be  too  long  in 
making  up  his  mind,  and  when  he  has  made  it  up  he 
should  to  a  large  extent  quit  thinking. 

And  as  for  the  young  ladies  that  form  such  an  impor- 
tant part  of  your  societies,  I  can  say  that  as  their  sex 
perform  their  duties  in  life  so  much  better  and  with 
so  much  more  grace  than  my  own,  it  would  be  something 
like  presumption  if  I  should  undertake  to  instruct  them 
as  to  their  duties  in  a  science  which  they  understand  so 
much  better  than  myself.  If  the  young  men  of  the 
country  can  only  be  got  to  see  their  duty  and  to  do  it, 
I  shall  have  no  fear  of  the  young  women.  I  have  hardly 
ever  seen  a  bad  or  a  mean  woman  but  that  she  had  been 
made  so  by  some  bad  or  mean  man.  Men  make  the  laws 
for  the  world,  but  women  supply  the  morals,  without 
which  laws  would  be  but  a  waste  of  words. 

There  are  many  signs  of  promise  in  the  present  age, 
but  one  of  the  most  hopeful  is  the  deeper  interest  that 
is  taken  in  the  cause  of  female  education.  This  is 
something  that  will  produce  its  fruits  hereafter.  When 
I  think  of  the  great  and  good  men  whose  names  appear 
like  bright  stars  shining  through  the  gloom  of  the  past, 
they  seem  to  me  to  be  still  greater  when  I  reflect  that 
they  were  often  trained  by  ignorant  mothers.  Lord 
Brougham  said  that  we  learn  more  in  the  first  two  years 


364  Addresses 

of  our  lives  than  in  all  the  other  years  put  together; 
and  those  two  years  and  several  years  afterwards,  are 
spent  mostly  with  the  female  members  of  the  household. 
Other  things  may  pass  into  oblivion,  but  the  lessons  then 
learned  are  never  forgotten.  In  the  darkest  as  well  as 
in  the  brightest  hour  of  humanity,  woman  has  ever 
stood  watch  over  religion  and  morality,  with  the  devo- 
tion with  which  the  vestal  virgin  guarded  the  sacred  fire. 
If  you  would  find  the  hour  and  the  spot  in  human  his- 
tory in  which  the  mind  has  been  most  darkened,  virtue 
most  neglected  and  man  most  depraved,  you  will  at  the 
same  moment  discover  the  time  and  the  place  in  which 
the  influence  of  woman  has  been  most  disregarded  and 
condemned.  It  is  something  beautiful  to  think  about, 
that  the  march  of  progress,  with  all  of  its  din  and  noise 
and  dust,  its  building  of  bridges,  its  rearing  of  cities, 
its  construction  of  railways,  its  hurry  and  its  clamor, 
is  silently  and  reverently  entering  the  domestic  circle 
to  add  new  charms  and  new  graces  and  new  and  more 
powerful  influences  to  womanhood.  It  is  less  than  sixty 
days  ago  that  the  laws  of  the  University  of  Oxford,  in 
England,  that  ancient  home  of  prejudice  and  exclusive- 
ness,  were  so  altered  as  to  admit  women  to  public  exami- 
nations. A  work  that  has  gone  so  far  can  never  go  back- 
ward, and  the  time  is  soon  coming  when  no  uneducated 
woman  can  be  found  in  all  the  length  and  breadth  of  the 
land. 

During  the  lifetime  of  my  generation  wonderful  things 
have  been  accomplished.  The  human  mind  has  made 
greater  advances  in  every  direction  than  in  centuries 
before,  and  the  world  has  been  changed  and  renovated. 
Very  soon  we  are  going  to  turn  it  all  over  to  you  young 
ladies  and  gentlemen,  with  everything  that  is  in  it.  May 
you  do  better  than  we  have  done,  and  may  you  be  wiser 
and  happier  than  we  have  been. 


STRIKES  AND  TRUSTS 

A  Paper  Read  at  the  Sixteenth  Annual  Meeting  of  the  American 
Bar  Association  August  13,  1893 


STRIKES  AND  TRUSTS 

The  year  1776  was  marked  by  two  of  the  most  impor- 
tant events  that  have  occurred  in  history,  the  publication 
of  Adam  Smith's  "Wealth  of  Nations"  and  the  Ameri- 
can Declaration  of  Independence,  both  of  which  opened 
up  new  fields  of  thought,  and  either  of  which  was  suffi- 
cient to  form  an  epoch.  One  writer  has  said  of  the  book 
referred  to  that  it  is  by  far  the  most  valuable  book  ever 
written  by  man,  while  another  writer,  Mr.  Buckle,  says: 

"Well  may  it  be  said  of  Adam  Smith,  and  said,  too, 
without  fear  of  contradiction,  that  this  solitary  Scotch- 
man has,  by  the  publication  of  one  single  work,  con- 
tributed more  towards  the  happiness  of  man  than  has 
been  effected  by  the  united  abilities  of  all  the  statesmen 
and  legislators  of  whom  history  has  preserved  an 
authentic  account." 

Other  men,  and  among  them  his  contemporaries,  Rous- 
seau and  Helvetius,  had  written  of  social  problems  from 
a  theoretical  or  academical  standpoint;  but,  building 
their  systems  on  false  and  delusive  foundations,  their 
conclusions  were  so  erroneous  and  inadequate  that  their 
writings  did  more  harm  than  good.  Smith  was  the  first 
to  apply  to  such  questions  the  processes  of  scientific 
thought ;  and  his  is  one  of  the  few  scientific  books  which, 
like  the  "Novum  Organum"  of  Bacon  and  the  "Prin- 
cipia"  of  Newton,  can  never  be  wholly  superseded.  Later 
investigation  has  indeed  proved  that  his  work  contains 
errors;  but  it  contains  fewer  errors  than  any  first  book 
on  any  great  subject  ever  written,  and  he  himself  laid 
down  the  methods  by  which  those  errors  might  be 
detected. 

367 


370  Addresses 

built.  But  at  a  time  when  nearly  all  labor  was  done 
by  slaves  who  had  no  participation  in  such  combinations, 
strikes  and  lockouts  could  hardly  have  been  very  common. 

The  first  historical  account  that  we  have  of  a  strike  is 
recorded  in  the  pages  of  Livy.  It  occurred  three  hun- 
dred and  ten  years  before  Christ,  and  broke  out  among 
the  flute-players  who  were  employed  to  play  at  the  public 
sacrifices  because  they  were  not  allowed  to  hold  their 
repasts  in  the  temple  of  Jupiter.  It  was  compromised 
by  a  concession  to  the  strikers.1  This  strike  was  not 
regarded  as  a  novelty,  since  the  historian  says  that  he 
only  mentions  it  by  reason  of  its  connection  with  religion. 

In  1883,  a  fragment  of  a  Greek  inscription  was  dis- 
covered relating  to  an  ancient  strike,  being  a  proclama- 
tion made  by  a  Roman  governor  of  Magnesia  during 
the  time  of  the  Empire  of  the  East,  on  the  occasion  of  a 
strike  on  the  part  of  the  bakers.     It  forbids  them  to 


1  "Another  transaction  of  this  year  I  should  pass  over  as  trifling 
did  it  not  seem  to  bear  some  relation  to  religion.  The  flute  play- 
ers taking  offence  because  they  had  been  prohibited  by  the  last 
censors  from  holding  their  repasts  in  the  temple  of  Jupiter,  which 
had  been  customary  from  very  early  times,  went  off  in  a  body 
to  Tibur;  so  that  there  was  not  one  left  in  the  city  to  play  at 
the  sacrifices.  The  religious  tendency  of  this  affair  gave  uneasi- 
ness to  the  Senate;  and  they  sent  envoys  to  Tibur  to  endeavor 
that  these  men  might  be  sent  back  to  Rome.  The  Tiburtines 
readily  promised  compliance,  and,  first  calling  them  into  the 
Senate  House,  warmly  recommended  them  to  return  to  Rome; 
and  then,  when  they  could  not  be  prevailed  on,  practised  on  them 
an  artifice  not  ill  adapted  to  that  description  of  people;  on  a  fes- 
tival day  they  invited  them  separately  to  their  several  houses, 
apparently  with  the  intention  of  heightening  the  pleasure  of  their 
feasts  with  music,  and  there  plied  them  with  wine,  of  which  such 
people  are  always  fond,  until  they  laid  them  asleep.  In  this  state 
of  insensibility  they  threw  them  into  wagons,  and  carried  them 
away  to  Rome;  nor  did  they  know  anything  of  the  matter  until 
(the  wagons  having  been  left  in  the  forum),  the  light  surprised 
them,  still  heavily  sick  from  the  debauch.  The  people  then 
crowded  about  them,  and,  on  their  consenting  at  length  to  stay, 
privilege  was  granted  them  to  ramble  about  the  city  in  full  dress 
with  music;  and  the  license  is  now  practiced  every  year  during 
three  days.  And  that  license  which  we  still  see  practiced  with  the 
right  of  being  fed  in  the  temple,  was  restored  to  those  who  played 
at  the  sacrifices."     Livy,  Lib.  IX,  c.  30. 


Strikes  and  Trusts  371 

organize  into  fraternities,  and  commands  them  to  obey 
the  magistrates  by  furnishing  labor  for  the  making  of 
bread,  so  that  there  should  be  no  lack  of  it.2 

In  the  reign  of  Zeno,  who  ascended  the  imperial  throne 
in  the  year  of  Christ  474,  workmen  engaged  in  building 
would,  after  having  begun  their  work,  strike  for  higher 
wages.  In  such  cases  the  employer  could  not  engage 
others  in  their  place,  because  they  all  belonged  to  an 
association  that  forbade  all  members  to  continue  or  finish 
a  work  begun  by  other  members.  Under  these  circum- 
stances, the  employer  could  only  accede  to  the  demands 
of  the  strikers  or  abandon  his  undertaking.  This  evil 
occasioned  an  imperial  ordinance  that  denounced  a  pun- 
ishment for  the  strikers,  and  for  those  who  refused  to 
continue  or  finish  their  work.3     This  ordinance  reveals 


2  The  following  is  a  translation  of  this  fragment : 

"  *  *  *  and  the  blindness  of  the  seditions  of  the  bakers  in 
the  market  place,  seditions  for  which  those  who  have  been  sent  to 
us  deserve  to  be  punished.  But  since  the  interest  of  the  city  is  to 
be  regarded  rather  than  their  chastisement,  we  have  decided  to 
reform  them  by  an  ordinance.  Wherefore  we  proclaim  this  ordi- 
nance: The  bakers  shall  not  unite  themselves  in  fraternities. 
Instead  of  adopting  audacious  methods  of  their  own  choosing,  they 
shall  yield  implicit  obedience  to  the  magistrates  who  have  been 
placed  over  them  for  the  public  good,  and  shall  supply  the  city  all 
necessary  labor  for  the  making  of  bread,  so  that  there  shall  be  no 
lack  of  it.  Henceforth  if  any  one  of  them  shall  be  convicted  of 
belonging  to  any  such  brotherhood,  contrary  to  this  prohibition, 
or  of  having  fomented  any  trouble  or  sedition,  he  will  be  sent  to 
us,  and  will  be  punished  according  to  the  nature  of  his  offence. 
And  if  any  one  dare,  in  order  to  injure  the  city,  to  conceal  him- 
self (here  follows  a  chasm),  he  will  be  arrested  and  subjected  to 
a  like  punishment." 

Bulletin  de  correspondence  hellenique,  1883,  505. 

3  The  ordinance,  after  prescribing  a  punishment  for  strikers, 
proceeds  as  follows: 

"No  one  shall  hinder  another  from  continuing  a  work  that 
has  been  begun  by  another,  as  we  are  advised  certain  artisans  and 
contractors  have  dared  to  do,  not  being  willing  themselves  to  finish 
what  they  have  commenced,  nor  to  let  others  finish  it,  and  so 
have  caused  serious  loss  to  those  who  had  employed  them.  And 
if  any  one  refuse  to  finish  a  work  for  the  sole  reason  that  it  has 
been  commenced  by  another,  he  shall  suffer  the  same  punishment 
prescribed  for  him  who  suspends  a  work  which  he  has  contracted 
to  do."— Const.  12,  Code,  Lib.  VTII,  tit.  X- 


372  Addresses 

the  existence  of  labor  organizations  that  had  long  been 
known,  having  succeeded  to  the  clans  of  ruder  times,  and 
which  were  succeeded  in  their  turn  by  the  working 
guilds  of  the  Middle  Ages,  conspicuous  among  which  were 
the  guilds  of  masons  and  builders  that  erected  the 
churches  and  cathedrals  that  at  present  adorn  all  the 
cities  of  Europe,  and  which  by  the  unity  of  their  archi- 
tecture betray  the  unity  of  their  origin. 

It  would  be  a  mistake  to  suppose  that  these  guilds 
were  at  all  similar  to  our  modern  trades  unions.  In 
those  days  the  master  occupied  no  higher  rank  in  the 
social  scale  than  the  workmen  that  he  employed.  They 
were  all  plebeians  alike,  the  master  took  a  part  in  the 
common  labor;  guilds,  established  in  the  interest  of  the 
craft,  included  both,  both  classes  being  indifferently 
represented  at  the  same  council  board.  Their  hostility 
was  not  directed  against  each  other,  but  against  the 
patricians,  or  the  aristocratical  element  of  society,  that 
imposed  on  them  restraints  that  were  alike  hateful  to 
both  master  and  servant.  As  most  of  the  work  was  then 
done  by  the  piece  in  the  homes  of  the  workmen,  the 
relation  between  them  and  the  master  was  much  less 
exacting  than  that  which  subsists  between  the  same 
classes  in  modern  times.  With  the  recent  inventions  for 
the  transmission  of  power  by  electricity,  it  is  possible 
that  in  the  future  the  former  system  may  be  restored. 
If  so,  many  of  the  existing  difficulties  of  our  present 
labor  system  will  disappear. 

With  the  increase  of  capital  and  the  invention  of 
labor-saving  machinery,  large  numbers  of  workmen  col- 
lected together  in  factories  under  the  eye  of  the  master, 
working  not  by  the  piece,  but  by  the  day.  Under  such 
methods  the  grievances  of  the  several  workmen  went  to 
make  up  a  common  grievance.  Then  came  the  modern 
aristocracy  of  wealth,  which  took  the  place  of  the  former 
aristocracy  of  the  patricians  or  land  owners,  after  which 


Strikes  and  Trusts  373 

the  standard  of  living  of  the  master  rose  far  above  that 
of  his  laborers,  and  his  communication  with  them  was 
usually  made  through  agents  and  superintendents,  by 
means  of  which  was  introduced  between  master  and 
servant  a  new  and  very  disturbing  element,  class  preju- 
dice and  animosity. 

Under  this  phase  of  evolution  it  was  inevitable  that  a 
new  differentiation  should  assert  itself.  From  that  time 
the  workmen  began  to  organize  themselves  separately 
for  purposes  of  defense  against  their  masters,  and  the 
modern  labor  problems  developed  themselves.  The  bond 
of  peace  was  broken,  employers  and  employes  came  to 
occupy  separate  and  hostile  camps,  and  hostile  camps 
bred  distrust  and  suspicion.  Present  conditions  show 
the  unfortunate  results.  Thus,  if  the  manager  or  super- 
intendent possesses  virtues,  he  will  himself  get  credit 
for  them ;  if  they  have  vices  or  faults,  these  are  ascribed 
to  the  common  employer  on  the  principle  of  adoption. 

If  the  employer  is  a  corporation,  as  commonly  hap- 
pens, the  evils  of  the  situation  are  greatly  enhanced ;  for, 
if  it  be  true  that  men  acting  in  a  corporate  capacity  will 
consent  to  do  many  things  which  their  consciences  would 
not  permit  them  to  do  as  individuals,1  it  is  none  the  less 
true  that  when  they  act  in  a  corporate  capacity  they  are 
subject  to  imputations  that  they  would  be  exempt  from 
as  individuals.  The  employe  is  apt  to  regard  the  corpo- 
ration solely  as  a  gigantic  and  selfish  monopolist;  not  a 
thing  of  flesh  and  blood,  but  a  cold  calculating  mechan- 
ism, a  sort  of  modern  Frankenstein,  an  alien  in  race, 
destitute  of  superhuman  origin,  capable  of  no  language 
save  the  jargon  of  profit  and  greed,  a  grotesque  abstrac- 
tion, created  and  operated  for  the  sole  purpose  of  mak- 
ing money.  To  love  or  sympathize  with  such  an  incor- 
poreal  and  unresponsive  entity  is   impossible;   and   it 


See  an  interesting  essay  by  William  Hazlitt  on  this  subject. 


374  Addresses 

seems  to  be  excluded  from  the  divine  injunction  that  we 
shall  love  our  neighbors  as  ourselves,  since  no  one  ever 
regarded  such  an  invisible  and  intangible  thing  as  his 
neighbor.  If  all  men  must  have  something  to  love,  the 
eternal  law  of  contrast  requires  that  they  must  have 
something  to  hate ;  and  as  hatred  is  naturally  attracted 
to  those  things  that  are  incapable  of  exciting  affection, 
it  happens  that,  in  a  competitive  examination  of  objects 
worthy  of  animosity,  corporations  are  apt  to  attain  to 
prominence  and  distinction.  That  they  are  often  made 
scapegoats  for  the  sins  of  others  is  undoubtedly  true; 
but  it  is  also  true  that  the  hostility  which  they  excite  in 
the  minds  of  those  who  are  subjected  to  their  power,  and 
who  cope  with  life  under  its  harder  and  more  difficult 
aspects,  is  often  justified  by  the  events  that  ensue;  and 
as  they  are  immortal,  death  does  not  extend  to  them  the 
mantle  of  oblivion  for  past  offenses,  while  their  immor- 
tality excludes  them  from  the  charity  which  among  nat- 
ural persons  proceeds  from  the  sadness  of  a  common 
destiny  which  puts  an  end  to  all  quarrels,  an  event  whose 
anticipation  goes  far  to  deaden  the  resentments  and  to 
temper  the  ordinary  asperities  of  life.  If  the  corporators 
are  thought  of,  they  are  confounded  with  the  corporation 
itself,  and  are,  in  any  event,  conclusively  presumed  to 
be  rich. 

The  socialistic  ideas  that  have  during  the  past  century 
been  so  industriously  circulated  have  also  added  their 
quota  to  the  general  causes  of  dissension.  Thus  it  has 
happened  that  strikes  and  lockouts  have  occurred,  and 
still  occur,  with  needless  frequency. 

Strikes  are  more  destructive  than  formerly,  not  only 
because  of  the  great  expansion  of  the  agencies  of  pro- 
duction and  the  grouping  of  vast  numbers  of  laborers 
together,  but  because,  owing  to  the  minute  subdivision 
of  labor  that  exists  in  modern  times,  there  is  a  more 
complex   interdependence   between   different   classes   of 


Strikes  and  Trusts  375 

laborers.  Thus  the  strike  among  the  cotton  spinners  of 
Preston,  England,  in  1839,  including  only  660  operatives, 
had  the  effect  to  throw  out  of  employment  7,840  weavers 
and  others  who  had  nothing  to  do  with  the  subject  matter 
of  the  quarrel. 

At  present,  vast  numbers  of  men  work  together  in  the 
same  calling  in  close  proximity  with  each  other,  having  a 
community  of  wants,  hopes  and  fears,  all  being  deeply 
interested  in  questions  that  affect  all  alike;  and  these 
great  aggregations  go  on  increasing  from  year  to  year. 
In  1870,  the  Krupp  manufactory  in  Germany  employed 
1,764  operatives.  In  1880,  the  number  had  increased  to 
7,084,  and  in  1885  the  number  had  further  increased  to 
20,000.  Counting  the  wives  and  children  of  these 
operatives,  we  find  at  that  time  a  population  of  63,381 
persons  dependent  on  the  wages  received  from  the  same 
employers,  of  whom  20,000  lived  in  houses  belonging  to 
the  plant  of  the  manufactory.  Since  that  time  the  num- 
ber of  employes  has  doubtless  been  still  farther  aug- 
mented. It  is  needless  to  speak  of  the  vast  multitudes 
of  men  engaged  in  the  service  of  our  railways,  which 
form  a  standing  army  of  imposing  magnitude.  The 
complexity  of  any  business  dependent  on  the  constant 
co-operation  of  so  many  men  can  only  be  properly  known 
and  appreciated  by  those  whose  daily  lives  require 
familiarity  with  all  of  its  details.  As  these  extensive 
communities  must  necessarily  embrace  individuals  that 
are  disposed  to  be  idle,  querulous,  distrustful,  envious, 
carping  and  resentful,  the  difficulty  of  keeping  the  peace 
in  such  enormous  households  must  be  plain. 

Friction  produces  discontent,  discontent  produces  con- 
troversy, and  controversy  leads  to  strikes.  The  disas- 
trous effects  of  strikes  can  hardly  be  computed ;  and  their 
most  heavy  burdens  fall  upon  the  laboring  classes.  In 
the  recent  strike  in  the  cotton  trade  in  Lancashire,  at 
the  end  of  the  first  twelve  weeks  the  operatives  had  lost 


376  Addresses 

in  wages  alone  $4,500,000.  Four  strikes  that  occurred 
in  England  between  1870  and  1880  involved  a  loss  in 
wages  of  more  than  $25,000,000.  Of  22,000  strikes 
investigated  by  the  National  Bureau  of  Labor,  it  was  esti- 
mated that  the  employes  suffered  a  loss  of  about 
$51,800,000,  while  the  employers  only  lost  about 
$30,700,000.  In  some  cases  where  strikes  have  been 
attended  with  riots  the  losses  to  the  employers  have  been 
immense.  Thus  the  Pittsburg  strikes  of  1877  resulted  in 
a  loss  of  $3,000,000  of  railway  property.  But  it  cannot 
be  said  that  the  strikers  made  anything,  though  they 
lost  heavily  in  wages.  Of  351  strikes  that  occurred  in 
England  from  1870  to  1880,  189  were  lost  by  the  strikers, 
71  were  gained,  and  91  were  compromised.  During  this 
time  there  were  2,001  other  strikes  of  which  the  results 
are  unknown.  The  victories  on  the  part  of  the  strikers 
were  no  doubt  often  rather  nominal  than  real.  In  one 
ease  the  success  attained  was  an  increase  of  wages;  but 
it  would  take  twenty  years  of  such  increase  to  make  up 
the  loss  sustained  by  the  strikers  in  obtaining  it.  In 
the  last  half  century,  wages  of  workmen  have  increased 
from  50  to  100  per  cent.  But  the  wages  of  domestic 
servants  and  agricultural  laborers  have  increased  in  the 
same  ratio;  and  they  have  never  resorted  to  strikes.  It 
does  not  follow,  however,  that  they  have  not  been  bene- 
fited by  strikes  in  other  callings;  for  when  the  wages  of 
skilled  workmen  go  up  men  that  would  otherwise  go  into 
or  remain  in  domestic  and  agricultural  service  go  to  the 
cities,  and  join  the  classes  of  skilled  workmen.  The 
effect  is  to  lessen  the  supply  of  laborers  in  the  callings 
that  are  abandoned,  and  thus  to  increase  the  price  of 
service.  There  is  another  loss  to  workmen  that  they 
do  not  regard  on  account  of  its  remoteness,  but  which 
must  add  enormously  to  their  aggregate.  By  reason  of 
the  frequent  occurrence  of  strikes,  men  with  capital 
refuse  to  go  into  industrial  pursuits,   and  hence  the 


Strikes  and  Trusts  377 

demand  for  labor  in  those  pursuits  is  more  limited  than 
it  would  otherwise  be,  and  wages  are  correspondingly 
reduced.  But  in  one  respect  strikes  have  brought  about 
results  that  are  beneficial  to  those  who  engage  in  them. 
As  strikes  have  occasioned  great  losses  to  employers,  they 
are  dreaded  by  capital,  which  makes  many  concessions 
upon  a  mere  demand  that  otherwise  would  never  be 
granted.  Strikes  have  deeply  inculcated  the  lesson  that 
laboring  men  have  rights  as  well  as  employers,  rights 
which  they  are  able  and  willing  to  defend;  and  so  they 
are  now  treated  with  much  more  consideration  and 
respect  than  formerly.  But  it  still  remains  true  that 
these  important  results  could  have  been  attained  with 
fewer  strikes  and  without  such  appalling  losses. 

Strikes  may  grow  out  of  any  kind  of  dispute  between 
employers  and  employes,  and  have  proceeded  from  many 
controversies  having  apparently  nothing  to  do  with 
wages.  But  as  the  majority  of  them  do  relate  to  wages, 
and  these  are  typical  of  all  others,  I  shall  confine  my 
attention  to  them  alone.  Indeed,  it  would  be  easy  to 
show  that  most  of  them  involve  questions  of  wages  even 
when  at  first  sight  they  seem  not  to  do  so.  Suppose,  for 
instance,  that  the  workmen  strike  because  the  master 
receives  more  apprentices  than  they  think  that  he  ought 
to  receive ;  they  do  so  because  by  this  increase  of  appren- 
tices the  number  of  skilled  laborers  will  be  increased, 
with  the  effect  of  lowering  the  standard  of  wages.  In 
case  of  laborers  striking  for  shorter  hours  of  labor,  they 
demand  the  same  pay  for  ten  hours  of  work  that  they 
had  received  for  the  labor  of  twelve  hours.  This  conse- 
quently is  a  demand  for  higher  wages.  Or  take  the 
extreme  case  of  a  strike  because  machinery  is  deemed 
unsafe.  Usually  even  this  could  be  smoothed  over  if 
the  employer  would  pay  extra  wages  in  proportion  to  the 
extra  hazard  incurred. 

The  conflicts  that  arise  between  the  manufacturer  and 


378  Addresses 

his  landlord  as  to  the  amount  of  rent  to  be  paid,  and 
between  him  and  the  capitalist  as  to  the  rate  of  interest 
on  money  borrowed  to  float  his  enterprise,  involve  onlj 
pecuniary  questions  that  at  the  worst  can  only  result 
in  individual  cases  of  bankruptcy  or  insolvency ;  but  that 
which  arises  between  all  the  representatives  of  capital 
and  labor  involves  questions  of  the  utmost  difficulty  and 
importance.  Political  economists  often  regard  labor  as  a 
mere  commodity  which  should  be  bought  and  sold  as 
other  commodities  are,  believing  that  the  law  of  supply 
and  demand  will  of  itself  regulate  the  prices  to  be  paid. 
It  is  true  that  labor  is  a  commodity;  but  it  is  a  com- 
modity of  a  peculiar  kind.  The  laborer,  by  his  contract 
of  hiring,  not  only  transfers  his  labor,  but  he  surrenders 
a  part  of  his  personal  liberty.  As  compared  with  most 
sellers  of  commodities,  he  is  under  many  disadvantages. 
He  is  single,  while  capital,  which  is  the  result  of  the 
toil  of  many  laborers,  may  be  said  in  its  force  to  be 
collective.  Usually  the  laborer's  case  will  brook  no  delay 
— he  must  have  work  or  he  and  his  family  must  starve. 
Capital,  however,  can  wait  until  approaching  famine 
compels  a  surrender.  The  sale  of  the  laborer  is  a  forced 
sale ;  and  at  forced  sales  commodities  usually  bring  only 
ruinous  prices.  Hence  it  is  that  in  England  and  in  this 
country  many  laws  have  been  passed  during  the  present 
century  to  protect  laborers  against  the  oppression  of 
employers,  and  it  is  partly  to  remedy  this  inequality  that 
trades  unions  are  formed,  the  chief  object  being  to  with- 
hold labor  from  the  market  in  times  of  urgent  pressure 
until  remunerative  prices  are  offered. 

As  these  unions  are  rarely  heard  of  by  the  public  save 
in  times  of  strikes,  many  people  suppose  that  their  prin- 
cipal function  is  the  promotion  of  strife;  but  in  point 
of  fact  their  objects  are  mainly  peaceful,  and  in  respect 
of  benevolence  and  utility  they  are  entitled  to  high  rank. 
It  has  been  said  that  if  they  did  not  exist  they  would 


Strikes  and  Trusts  379 

have  to  be  invented.  Seven  of  these  unions  in  England 
from  1875  to  1884  collected  and  dispensed  more  than 
$14,000,000.  At  the  end  of  the  year  1875  the  United 
Society  of  English  Engineers  alone  possessed  a  reserve 
fund  of  more  than  a  million  of  dollars. 

These  unions  have  regularly  constituted  authorities  for 
their  government.  As  to  employers,  they  do  not  deal 
with  them  in  respect  of  wages  unless  the  question  has 
become  a  general  one;  but  they  receive  no  member  who 
is  not  capable  of  earning  the  rate  of  wages  prevailing  in 
his  district.  If,  on  account  of  incapacity,  a  laborer  can- 
not earn  this  general  rate,  he  is  excluded  from  the  union. 
If  a  member  is  turned  out  of  employment  on  account 
of  drunkenness,  or  other  improper  conduct,  he  is  also 
excluded.  If  he  is  discharged  by  his  employer  without 
good  reason,  he  receives  a  donation  from  the  union  until 
he  can  secure  employment.  If  he  is  sick  or  disabled  he 
receives  a  like  donation,  and  in  case  of  the  death  of  him- 
self or  his  wife,  usually  the  burial  expenses  are  paid  by 
the  union.  If  superannuated,  he  receives  an  allowance 
in  the  shape  of  a  pension.  If  many  workmen  are  out  of 
employment,  such  as  may  wish  to  emigrate  are  assisted 
in  doing  so.  The  proper  officers  keep  advised  as  to  the 
wants  of  employers  so  as  to  aid  members  to  find  employ- 
ment when  needed.  Use  is  made  of  the  organization  to 
secure  concert  of  action  in  case  of  a  strike. 

The  objects  above  mentioned  are  all  praiseworthy  as 
tending  to  elevate  the  moral  and  intellectual  standard 
of  living  of  the  workmen.  Other  regulations  are  more 
open  to  criticism,  such  as  the  exclusion  of  non-union  men 
from  employment,  the  exclusion  of  women  and  children, 
the  limitation  of  the  amount  of  work  to  be  done  by  each 
workman  by  the  hour  or  day,  the  prohibition  of  work 
by  the  piece,  the  limitation  of  the  number  of  appren- 
tices by  the  ratio  of  workmen  engaged  in  each  factory, 
and  at  times  the  inhibition  of  improved  machinery. 


380  Addresses 

In  all  trades  these  unions  exercise  a  dominating  influ- 
ence in  questions  affecting  the  interests  of  the  workmen 
growing  out  of  contracts  with  employers;  and  in  case 
of  strikes  very  commonly  the  non-union  men  place  them- 
selves under  their  leadership.  The  non-union  men  are 
made  up  of  workmen  of  unusual  skill  who  will  not 
accept  the  maximum  of  wages  prescribed  by  the  unions, 
inferior  workmen  not  capable  of  earning  the  prescribed 
wages,  the  idle  and  the  vicious  who  will  not  pay  the  dues 
required,  and  others  who  from  temperament  object  to 
associations  of  that  kind. 

Trades  unions  are  not  all  alike.  They  differ  as  indi- 
viduals do.  But  these  are  the  main  objects  for  which 
they  are  created.  By  enabling  large  bodies  of  men  to 
act  as  a  unit,  they  overcome  in  a  measure  the  inequality 
that  otherwise  would  exist  between  them  and  their 
employers.  Their  funds  are  derived  from  weekly  con- 
tributions, special  assessments,  occasional  fines,  and 
profits  accruing  from  their  investments.  If  their  reserve 
fund  increases  they  enlarge  the  sphere  of  their  useful- 
ness among  their  members  in  many  ways.  But  as  peace 
is  the  time  to  prepare  for  war,  they  strive  always  to  keep 
on  hand  money  enough  to  meet  the  emergency  of  a  strike. 
In  a  few  of  the  unions  a  special  fund  is  collected  and 
set  apart  for  this  latter  purpose,  never  to  be  used  for 
any  other.  This  leads  to  a  spirit  of  defiance  and  jingo- 
ism ;  for,  since  the  money  can  only  be  used  for  a  strike, 
strikes  must  be  resorted  to  in  order  to  dispose  of  it.  But 
most  unions  have  no  such  separate  fund.  They  know 
the  bitter  evils  and  privation  attending  a  strike  as  well 
as  others,  and  they  are  averse  to  measures  that  so  thor- 
oughly impair  the  usefulness  of  their  ordinary  opera- 
tions ;  though  from  passion  and  recklessness  strikes  often 
occur  without  any  reasonable  grounds.  The  general 
result  is  that  the  unions  lessen  the  number  of  strikes, 
but  make  them  last  longer  when  they  do  occur.     For- 


Strikes  and  Trusts  381 

merly  strikes  were  temporary  raids  or  skirmishes.  At 
present  they  are  military  campaigns,  conducted  with 
skill  and  judgment.  Their  greatest  chance  of  success  is 
on  a  rising  market.  "With  a  falling  market  they  almost 
invariably  fail. 

A  strong  effort  is  always  being  made  to  interest  these 
unions  in  the  schemes  of  agrarians  and  anarchists. 
Whenever  allowed,  their  reading  rooms  are  deluged  with 
books  and  tracts  that  dwell  on  the  frightful  inequality 
of  human  conditions,  containing  evil  prophecies  of  the 
future  condition  of  laboring  men,  and  stating  dishearten- 
ing propositions  in  political  economy  that  are  plausible 
though  false.1 

The  most  conspicuous  representative  of  these  socialistic 
ideas  of  late  years  was  the  ' '  International  Association  of 


1  The  writers  generally  dwell  with  much  persistance  upon 
what  is  known  as  "the  Iron  Rule  of  Wages,"  or  the  "Wages  Fund" 
theory,  first  brought  forward  by  Lasalle,  and  which  had  its  origin 
in  the  delusions  of  Malthus  on  Population.  This  theory  in  short 
is  that  the  fund  set  apart  by  capital  for  wages  is  definitely  fixed, 
and  that  as  laborers  increase  with  the  increase  of  population,  it 
must  be  divided  among  a  greater  number,  so  that  wages  must 
constantly  become  lower,  and  the  situation  of  the  working  classes 
must  continually  become  worse.  This  would  be  true  if  the  labor- 
ing classes  alone  increased;  but  when  other  classes  increase  in  pro- 
portion with  them,  it  is  false.  The  notion  has  often  been  ex- 
{iloded,  and  is  demonstrably  untrue,  since  the  condition  of  the 
aboring  classes  has  greatly  improved  in  the  last  fifty  years, 
though  there  has  been  no  diminution  in  the  increase  of  popula- 
tion. Just  here  I  wish  to  acknowledge  the  debt  that  I  owe  to  M. 
Crouzel,  who  treats  of  this  subject  in  his  "Etude  Historique, 
Economique  et  Juridique  sur  les  Coalitions  et  les  Greves  dans  1' 
Industrie,"  (Paris,  1877).  He  is,  however,  in  error  in  supposing 
that  the  celebrated  political  economist  Brentano  has  given  his 
adhesion  to  the  "Iron  Rule."  On  the  contrary,  he  has  refuted  it 
with  his  usual  ability.  See  "Das  Arbeitsverhaltniss  gemass  dem 
Heutigen  Recht."  Brentano's  work  is  made  accessible  to  Eng- 
lish readers  by  a  translation  by  Mr.  Porter  Sherman  under  the 
title  "The  Relation  of  Labor  to  the  Law  of  Today;"  New  York, 
1891.  Thornton  has  effectually  disposed  of  the  "Iron  Rule"  by 
showing  that  wages  are  only  provisionally  paid  by  employers,  be- 
ing paid  in  the  end  by  consumers.  Nevertheless,  the  "Iron  Rule" 
is  still  stated  as  being  correct  by  various  authors  on  political 
economy,  whose  books  are  extensively  used  in  our  schools  and 
colleges. 


382  Addresses 

Workingmen, "  which  had  its  origin  in  a  reunion  of 
German  communists  held  in  London  in  1847,  headed  by 
Karl  Marx  and  Friedrich  Engels,  though  not  actually- 
organized  until  a  few  years  later.  At  first  it  had  a  dif- 
ferent object,  which  was  to  prevent  the  transportation 
of  laborers  from  one  country  to  another  for  the  purpose 
of  supplying  the  place  of  other  laborers  who  were  on  a 
strike ;  a  result  which  is  accomplished  by  our  act  of  Con- 
gress that  forbids  the  importation  of  laborers  under 
previous  contracts  for  labor.  But  the  "International" 
soon  became  a  propaganda  for  the  dissemination  of  com- 
munistic and  anarchical  doctrines.  By  it  strikes  of  all 
kinds  were  welcomed  as  agencies  tending  to  the  com- 
plete overthrow  of  the  existing  social  system.  Owner- 
ship of  property  was  denounced  as  a  crime,  any  com- 
promise with  capital  as  an  infamous  surrender  of  prin- 
ciple. The  " International' '  is  supposed  to  have  taken 
an  active  part  in  the  communistic  revolt  in  Paris  in 
1871;  and  the  overthrow  of  the  commune  had  a  disas- 
trous effect  on  its  fortunes.  It  has,  indeed,  ceased  to 
exist,  and  has  been  succeeded  by  analogous  associations, 
such  as  the  "Democratic  Socialist,"  started  by  the  Rus- 
sian nihilist  Bakounine,  and  two  others  known  as  the 
"Autonomists"  and  the  "Marxists."  Though  these 
societies  are  active,  and  are  supposed  to  co-operate,  yet 
the  distinctive  spirit  of  the  ' '  International ' '  has  received 
a  check.  The  downfall  of  the  commune,  the  executions 
at  Statory,  the  prompt  conviction  and  punishment  of 
the  anarchists  at  Chicago,  are  lessons  that  have  borne 
their  fruit. 

In  the  year  1882  the  French  socialists  endeavored  to 
revive  the  "International."  At  the  first  meeting,  M. 
Tortellier,  a  Frenchman,  proclaimed  the  old  doctrine  of 
dynamite  and  the  torch;  but  Pamius,  a  Spaniard, 
expressed  himself  thus : 

"I  represent  20,000  workmen.    In  all  parts  of  Cata- 


Strikes  and  Trusts  383 

Ionia  they  are  tracked  and  imprisoned.  Nevertheless  I 
do  not  favor  the  system  of  M.  Tortellier.  Knowledge  is 
what  we  need  in  our  struggle  with  capital.  The  working 
classes  should  be  more  conscientious,  more  united,  but 
should  keep  within  the  bounds  of  the  law." 
Mr.  Burnett,  an  Englishman,  said: 

"Every  doctor  praises  his  own  nostrum;  but  the 
patient  believes  in  the  medicine  that  has  cured  him.  So 
in  England,  we  believe  in  the  methods  by  which  we  have 
succeeded.  We  have  been  able  to  manage  our  own 
affairs.  Thus  we  have  acquired  a  considerable  part  of 
the  general  wealth  of  the  country,  and  we  have  succeeded 
in  having  important  laws  enacted  by  Parliament.  But 
even  if  we  were  less  fortunate,  nothing  could  be  more 
detestable  in  our  eyes  than  the  proposition  of  Citizen 
Tortellier,  that  we  should  go  to  cutting  the  throats  of  our 
employers." 

Socialism  is,  however,  not  dead.  It  still  plays  an 
important  part  in  the  politics  of  Germany  and  France, 
and  funds  are  sent  to  those  countries  from  other  parts 
of  Europe  and  from  America  with  which  to  influence 
elections.  Socialistic  ideas  also  give  rise  at  times  to 
strikes  in  this  country,  as  in  the  case  of  the  strike  of 
the  employes  of  the  Missouri  Pacific  Railway  System  in 
1886,  originating  in  the  discharge  of  and  refusal  to  rein- 
state a  superintendent.  It  is  clear  that  such  an  officer 
may  render  himself  unpopular  with  the  men  under  him 
merely  by  the  fidelity  with  which  he  discharges  his  duty 
to  his  employer,  and  vice  versa,  and  that  capitalists 
would  not  invest  money  in  enterprises  that  were  to  be 
controlled  by  their  employes.  Such  strikes,  if  they  could 
succeed,  would  soon  destroy  the  whole  industrial  sys- 
tem. They  cannot  succeed,  because  in  such  cases  capital 
is  fighting  for  its  very  existence,  and  destruction  is 
better  than  defeat. 


384  Addresses 

Though  the  working  classes  may  and  should  exercise 
a  large  influence  on  legislation,  yet  they  cannot,  even 
when  most  united  and  most  oppressed,  control  it  by 
resort  to  violence  or  threats,  as  was  conclusively  proved 
by  the  fiasco  of  Chartism  in  England.  Nor  can  they,  by 
uniting  with  other  classes,  by  like  means  destroy  the 
union  of  authority,  individualism  and  socialism  upon 
which  modern  civilization  essentially  depends.  The  out- 
burst of  the  French  Revolution,  based  on  theories  of  ideal 
equality,  had  no  other  effect  than  to  transfer  the  power 
of  the  crown  to  an  irresponsible  lot  of  damagogues,  and 
in  the  end  Napoleon  may  be  said  to  have  succeeded  to 
the  throne  of  Louis  XVI.  with  a  vast  increase  of  power. 
Intelligent  workmen  know  these  things,  and  the  great 
body  of  their  class  are  deterred  from  joining  in  the  wild 
and  headlong  schemes  of  socialists  and  anarchists  by 
moral  principle,  which  is  as  well  developed  in  them  as 
in  other  classes  of  the  community.  Apparently,  however, 
these  schemes  and  those  who  advocate  them  will,  for  a 
long  time,  require  looking  after  by  those  who  prefer  a 
reign  of  law  and  order  to  scenes  of  violence.  The  Labor 
Exchange,  in  Paris,  which  was  closed  a  short  time  ago, 
established  under  government  protection  to  serve  as  a 
place  of  reunion  for  about  three  hundred  trades  unions, 
embracing  about  four  hundred  thousand  members,  and 
as  a  general  intelligence  office,  soon  became  a  focus  for 
the  diffusion  of  the  dogmas  of  anarchy,  a  rallying  point 
for  the  idle,  the  vicious  and  the  refractory. 

The  question  of  apprenticeship  requires  a  little  more 
attention.  The  trades  unions  do  not  always  seek  to 
reduce  the  number  of  apprentices  by  fixing  a  ratio  with 
the  existing  number  of  skilled  workmen.  Sometimes 
they  make  the  terms  of  apprenticeship  so  onerous  as  to 
prevent  most  youths  from  trying  to  learn  the  art.  Thus, 
in  the  silk  industry  in  Lyons,  though  a  young  man  may 
learn  the  mystery  of  silk  weaving  in  six  months,  yet  he 


Strikes  and  Trusts  385 

must  serve  an  apprenticeship  of  four  years.  This  is  a 
benefit  to  the  master,  as  it  gives  him  the  expert  labor  of 
the  apprentice  for  three  years  and  a  half  for  nothing. 
On  the  other  hand,  it  injures  him  by  lessening  the  num- 
ber of  apprentices,  thereby  lessening  the  supply  of  skilled 
laborers,  and  so  makes  wages  high.  The  advantage  on 
the  whole  is  with  the  workmen.  A  statute  of  Elizabeth 
fixed  the  period  of  apprenticeship  in  all  trades  at  seven 
years.  It  was  repealed  in  1841.  At  the  time  of  the  agita- 
tion for  its  repeal,  it  was  found  that  the  repeal  was 
favored  by  masters  and  was  opposed  by  employes. 

In  order  to  meet  the  preparations  for  strikes  made  by 
workmen,  employers  form  counter  organizations,  of 
which  the  "Western  Iron  and  Steel  Manufacturers' 
Offensive  and  Defensive  Alliance,' '  in  this  country,  may 
be  regarded  as  a  type.  The  policy  of  strikers  is  to  attack 
the  enemy  in  detail ;  that  is,  to  strike  against  one  factory 
or  mill  at  a  time.  If  the  first  strike  succeeds,  then  they 
attack  the  others  successively  until  all  succumb.  By  this 
means  all  the  laborers  interested  can  assist  in  the  sup- 
port of  each  strike,  while  most  of  them  are  drawing 
wages  from  the  common  enemy.  To  prevent  the  success 
of  this  policy,  the  coalitions  of  employers  insure  each 
other  against  strikes  in  sums  proportioned  to  the  amount 
of  capital  invested  in  each  mill,  the  number  of  hands 
employed  and  the  duration  of  the  strike.  This  enables 
the  immediate  victim  of  the  strike  in  each  case  to  hold 
out  longer,  with  a  better  prospect  of  success.  In  the 
meanwhile,  if  times  are  good,  the  other  mill  owners  are 
running  their  mills  at  a  profit.  If  this  course  seems  not 
to  be  advisable  whenever  a  strike  is  declared  against  one 
employer,  all  the  rest  of  them  declare  a  lockout,  thus 
throwing  all  of  the  workmen  out  of  employment  at  the 
same  time,  and  adding  to  their  distress.  In  these  ways 
each  party  tries  to  cripple  the  enemy  as  much  as  possible. 

It  has  been  contended  that  as  strikes  are  attended  by 


386  Addresses 

such  ruinous  consequences,  they  should  be  forbidden  by 
law,  as  they  were  by  the  English  common  law,  and  as 
they  are  today  in  Russia.  But  in  a  free  country,  where 
hiring  between  citizens  sui  juris  can  only  rest  on  con- 
tract, the  law  cannot  force  one  man  to  work  for  another, 
nor  can  there  be  any  reason  for  giving  any  other  than 
a  civil  remedy  for  the  violation  of  labor  contracts  that 
would  not  equally  apply  to  all  other  contracts;  and  if 
one  laborer  may  quit  his  employer,  you  cannot  prevent 
two  or  more  from  quitting  at  the  same  time.  Persons 
engaged  in  the  same  calling  usually  consult  about  mat- 
ters in  which  they  have  a  common  interest.  Consultation 
would  be  of  no  utility  if  it  could  not  lead  to  concert  of 
action.1  In  France  associations  of  workmen  were  long 
forbidden  by  law.  The  consequence  was  that  secret 
societies  were  formed,  which  proved  to  be  far  more  dan- 
gerous than  open  ones.  In  both  France  and  England, 
after  many  legislative  experiments,  liberty  of  associa- 
tion is  now  conceded  to  workmen.  Neither  are  strikes 
forbidden;  but  certain  invasions  of  rights  of  property 
and  of  personal  liberty,  by  threats  and  overt  acts  com- 
monly attending  strikes,  are  specially  prohibited  under 
penal  sanctions.  Like  principles  prevail  in  America  and 
in  all  parts  of  Europe,  save  Russia.  Thus  modern  juris- 
prudence, after  much  vacillation,  coincides  with  the  law 
of  the  Twelve  Tables,  which  conceded  the  power  of  asso- 
ciation to  all  citizens,  subject  to  liability  to  punishment 
for  any  infringement  of  the  public  peace. 

There  are  tendencies  that  prevent  wages  from  becom- 
ing either  exceptionally  high  or  exceptionally  low.  As  a 
general  rule,  the  employe  desires  that  they  shall  be  high, 
the  employer  that  they  shall  be  low.    But  the  employer 


*It  is  not  to  be  denied,  however,  that  this  question  is  still 
open  to  discussion.  M.  Paul  Leroy-Beaulieu,  whose  competency 
in  respect  of  subjects  of  this  kind  will  not  be  doubted,  has  re- 
cently published  an  article  in  which  he  contends  that  strikes 
should  be  prohibited  by  law — L'  Economiste  Francais,  No.  25. 


Strikes  and  Trusts  387 

knows  that  if  his  workmen  are  to  do  the  most  work 
and  the  best  work,  they  must  be  well  nourished,  kept  in 
good  health,  and  be  fairly  well  contented  with  their  pay. 
On  the  other  hand,  the  laborer  knows  that  if  he  demands 
excessive  wages  he  may  render  the  business  of  his 
employer  unprofitable,  and  put  an  end  to  it,  thereby 
throwing  himself  and  his  co-laborers  out  of  employment, 
thus  increasing  the  supply  of  labor,  and  at  the  same 
time  lessening  the  demand,  with  a  necessary  farther 
decline  in  wages.  There  is  an  ideal  medium  point  in 
every  case  at  which  wages  should  be  fixed  for  the  mutual 
advantage  of  both  parties;  but  as  there  is  no  visible 
standard  by  which  it  can  be  ascertained,  and  both  par- 
ties are  liable  to  be  blinded  by  ignorance,  and  misled  by 
passion  and  prejudice,  different  views  will  prevail,  and 
strikes  and  lockouts  will  ensue,  the  results  of  which  are 
sometimes  beneficial  not  only  to  the  victorious  party,  but 
to  the  defeated  as  well,  the  defeated  party  having  uncon- 
sciously contended  for  something  harmful  to  their  own 
interests.  On  the  other  hand,  it  often  happens  that 
strikers  by  unreasonable  exactions  kill  the  goose  that 
lays  the  golden  egg.  It  will  thus  be  seen  that  the  con- 
test as  to  wages  relates  to  a  narrow  margin.  But  small 
as  the  sum  may  be  when  considered  with  regard  to  each 
workman,  the  aggregate  sum  in  dispute  may  be  highly 
important. 

Two  plans  have  been  presented  for  the  total  preven- 
tion of  strikes,  both  alike  in  respect  of  the  fact  that  they 
contemplate  the  blending  of  all  the  interests  of  produc- 
tion in  the  same  persons.  The  first  is  the  plan  of  co-oper- 
ation, which  is  alluring  in  theory,  but  disappointing  in 
practice.  When  the  employer  and  employes  are  working 
under  a  fixed  tariff  of  wages,  they  have  placed  a  valua- 
tion on  the  portion  of  the  prospective  profits  that  shall 
go  to  labor ;  and,  since  it  is  to  be  paid  at  all  events,  the 
employer  becomes  an  insurer  that  this  portion  shall  be 


388  Addresses 

unconditionally  paid ;  while  under  the  system  of  co-oper- 
ative labor  the  laborers  furnish  the  capital,  dispense  with 
insurance,  and  take  their  own  risk;  and  the  risk  has 
always  proved  to  be  great. 

If  the  laborers  can  secure  the  necessary  capital  they 
are  generally  burdened  with  heavy  interest.  Workmen 
accustomed  to  rely  upon  fixed  salaries  are  commonly  too 
timid  or  too  prudent  to  embark  in  enterprises  that  expose 
them  to  all  the  dangers  of  mismanagement,  to  all  the 
risks  of  a  fluctuating  market;  and  they  wisely  distrust 
the  fortunes  of  an  undertaking  that  is  to  be  turned  over 
to  the  control  of  many  persons,  who  may  entertain 
widely  conflicting  views  on  every  subject  that  may  come 
up.  Although  these  associations  admit  new  members, 
yet  experience  shows  that  there  is  a  strong  tendency  to 
a  reduction  of  numbers.  When  hard  times  come  on,  and 
losses  are  sustained,  many  shareholders,  becoming  dis- 
couraged, withdraw  and  go  again  to  work  for  wages. 
On  the  other  hand,  if  the  affair  proves  a  success,  as  in 
the  ease  of  the  "Rochdale  Pioneers"  of  England,  saga- 
cious and  farseeing  members  buy  up  the  shares  of  their 
fellows,  or  they  are  bought  up  by  outside  persons  seeking 
investments;  and  in  either  event  the  association  soon 
loses  its  distinctive  character  by  becoming  an  ordinary 
stock  company  or  corporation.  Thus  there  can  be  no 
hope  for  an  institution  that  must  be  destroyed  either  by 
adversity  or  prosperity,  since  it  is  impossible  for  it  to 
avoid  both. 

Another  proposed  remedy  is  that  of  the  socialist.  We 
are  all  more  or  less  familiar  with  the  benevolent  dilettanti 
who  delight  to  draw  attractive  pictures  of  a  community 
in  which  there  shall  be  neither  rich  nor  poor,  great  nor 
small,  in  which  all  the  members,  being  placed  on  a  per- 
fect level,  shall  work  harmoniously  according  to  their 
several  abilities  for  the  public  good,  forming  one  happy 
family  from  which  dissension  shall  be  forever  banished. 


Strikes  and  Trusts  389 

Appropriately  enough,  these  seductive  plans  are  usually 
clad  in  the  garb  of  fiction,  which  allows  the  writer  a 
complete  control  over  the  materials  with  which  he  works, 
and  enables  him  to  ignore  all  the  facts  which  lie  at  the 
foundation  of  his  theories.  According  to  his  contention, 
good  government  first  of  all  requires  the  total  suppres- 
sion of  all  inequalities  of  condition.  As  all  men  cannot 
be  brought  up  to  the  highest  standard  of  wisdom  and 
ability,  those  who  excel  in  these  respects  must  be  con- 
strained to  some  level  which  may  be  approximately 
reached  by  the  multitude.  Titian  must  be  cut  down  to 
the  level  of  a  sign  painter,  and  the  style  of  Milton  must 
be  made  to  conform  to  that  of  the  nearest  local  editor. 

Under  such  conditions  there  could  be  but  small  aspira- 
tion towards  individual  excellence;  and  as  civilization 
could  not  advance,  and  nothing  in  the  universe  can 
remain  still,  it  would  follow  that  its  standard  must  con- 
tinually decline  until  society  would  dissolve  into  its  prim- 
itive elements,  and  mankind  would  relapse  into  bar- 
barism. In  an  ideal  state  of  the  social  organism,  we  are 
told,  there  would  be  neither  buying  nor  selling,  but  every 
one  would  work  in  the  workshops  of  the  government, 
bringing  every  day  his  contribution  to  the  general  fund 
of  useful  things,  where  it  would  be  appraised  by  a  gov- 
ernment board  which  would  fix  the  true  value  on  every- 
thing from  a  poem  by  Homer,  a  statue  by  Phidias,  or  a 
symphony  by  Beethoven  to  a  child's  plaything  or  a 
basket  of  onions.  It  is  assumed,  of  course,  that  there 
would  never  be  any  dispute  as  to  the  wisdom  or  justice 
of  these  appraisements ;  but  it  is  difficult  to  see  on  what 
principle  they  could  be  made.  We  know  nothing  about 
commercial  values  save  experimentally  from  the  open 
market,  where  values  are  fixed  by  the  desires  and  capa- 
bilities of  all  men  having  access  to  it.  Boards  that  at 
present  appraise  the  value  of  property  do  so  by  reference 
to  recent  sales  or  offers  in  the  market.    In  the  absence 


390  Addresses 

of  markets  to  refer  to,  the  assessments  could  only  be 
whimsical  and  arbitrary;  and  they  would  always  be 
wrong.  Today  no  human  being  can  tell  what  a  thing  will 
be  worth  tomorrow;  but  under  this  regime  we  are  to 
be  furnished  with  boards  that  will  continually  evolve  out 
of  their  own  consciousness  some  unfailing  standard  of 
values;  and  though  we  know  that  all  attempts  hereto* 
fore  made  to  regulate  values  by  law  have  resulted  in 
signal  failures,  we  are  here  asked  to  believe  that  all 
men  would  acquiesce  uncomplainingly  in  decisions  made 
by  boards  probably  inferior  to  that  composed  of  the 
barber  and  the  curate  in  Don  Quixote,  and  who  could 
never  give  any  reason  for  any  conclusion  which  they 
reached. 

No  one  complains  so  much  of  officials  as  the  socialist; 
and  yet  he  proposes  a  plan  that  would  cover  the  land 
with  officials  like  the  locusts  of  Egypt.  Such  an  official- 
ism would  establish  a  slavery  more  terrible  and  exas- 
perating than  any  that  has  ever  been  known,  which 
would  have  no  other  merit  than  that  it  could  not  last  for 
more  than  a  single  day.  As  there  would  be  no  large 
rewards  without  infringement  on  the  sacred  principle 
of  equality,  the  mainspring  of  enterprise  would  be 
broken.  Bad  as  the  world  is,  there  is  still  room  for 
congratulation  that  the  schemes  of  the  socialist,  involving 
a  life  without  ambition  and  without  hope,  a  mere  exist- 
ence of  dreary  monotony,  only  enlivened  by  the  vexation 
caused  by  petty  officials,  is  something  beyond  the  range 
of  possibility;  a  conclusion  that  rests  upon  experiment 
as  well  as  induction,  for  socialism  has  been  often  tried 
in  small  and  homogeneous  communities  made  up  of  men 
strong  in  the  faith,  and  has  as  often  failed  ignomini- 
ously.  Even  the  institution  of  the  firm  and  resolute 
Puritans  in  New  England  failed  because  of  the  restraints 
that  were  imposed  by  it  on  personal  liberty;  and  yet 


Strikes  and  Trusts  391 

the  restraints  of  Puritanism  were  only  one  to  a  thou- 
sand of  those  that  are  involved  in  the  socialistic  project. 
At  present  the  agrarian  socialist  is  merely  a  purveyor 
for  the  camp  of  the  anarchist. 

Very  closely  akin  to  this  plan  is  that  of  having  the 
government  buy  up  all  the  railroads  and  telegraphs,  with 
any  other  property  the  present  management  of  which  is 
complained  of.  I  cannot  dwell  upon  this  proposition 
that  has  been  discussed  in  every  possible  phase,  and 
which  has  found  but  few  intelligent  supporters  outside 
of  doctrinaires  that  are  always  ready  to  take  the  risk  of 
the  most  colossal  experiments.  The  problem  with  us 
is  not  like  the  railway  problem  that  exists  in  small  coun- 
tries like  Prussia.  To  consider  the  railway  question 
alone,  we  have  about  one-half  in  length  of  all  the  rail- 
ways in  the  world,  which  are  operated  by  about  1,200,000 
men.  If  the  proposed  system  were  adopted,  the  govern- 
ment would  abdicate  its  function  as  a  disinterested 
arbiter  between  all  forms  of  enterprise,  would  itself  enter 
the  field  of  competitive  industry  with  such  powers  as  no 
monopoly  has  ever  possessed.  This  power  would  be 
placed  in  the  hands  of  American  politicians,  with  results 
that  no  one  can  safely  speculate  upon ;  though  it  is  plain 
enough  that  a  government  that  is  republican  and  par- 
liamentary, and  by  no  means  administrative,  could  never 
bear  the  strain  that  would  thus  be  put  upon  it. 

There  is  another  plan  which,  though  only  a  palliative, 
has  heretofore  been  attended  with  nothing  but  good 
results,  and  which,  no  doubt,  will  be  hereafter  extended ; 
I  mean  that  of  profit-sharing  with  employes,  a  plan  that 
has  been  successfully  adopted,  with  some  variations  in 
detail,  by  the  Illinois  Central  and  the  Pennsylvania  Rail- 
way Companies. 

The  establishment  of  courts  of  arbitration  has  been 
attended  with  most  gratifying  results,  particularly  in 


392  Addresses 

England.  For  these  we  are  chiefly  indebted  to  Mundella, 
an  English  manufacturer,  and  to  Robert  Kettle,  an  Eng- 
lish county  judge. 

Their  plans  differ  in  some  respects  that  I  have  not  time 
to  dwell  upon.  Dr.  Brentano,  who  had  given  to  this 
subject  his  most  profound  attention,  says  that  wherever 
a  court  of  arbitration  has  been  created  in  any  industry 
"there  has  been,  since  that  time,  neither  a  strike  nor 
a  lockout."  By  the  act  of  Parliament  of  August  6,  1872, 
passed  at  the  instigation  of  Mr.  Kettle,  a  legal  sanction 
has  been  given  to  these  tribunals.  They  are  constantly 
being  extended  from  place  to  place,  from  industry  to 
industry.  They  are  composed  of  equal  numbers  of  judges 
chosen  by  employers  and  workmen,  with  an  umpire 
agreed  upon  by  both  parties.  When  a  dispute  has  actu- 
ally arisen  it  is  often  found  to  be  difficult  to  unite  on 
the  choice  of  an  umpire;  but  that  difficulty  is  lessened 
when  the  umpire  is  chosen  for  the  period  of  a  year  or 
longer.  The  courts  hold  a  session  every  three  months, 
hear  testimony,  and  settle  all  disputes  that  arise  between 
the  employer  and  his  employes.  As  nations  are  now 
learning  that  international  disputes  may  be  settled  more 
cheaply  and  more  satisfactorily  by  arbitration  than  by 
war,  it  may  be  that  the  parties  to  the  conflict  between 
capital  and  labor  may  learn  to  profit  by  their  wholesome 
example. 

The  chief  advantage  of  courts  of  arbitration  consists 
in  the  fact  that  they  furnish  an  inexpensive  method  of 
settling  disputes  before  they  become  envenomed  by  a 
war  of  words.  After  a  strike  has  once  begun,  amicable 
settlement  becomes  difficult,  if  not  impossible. 

Not  infrequently,  in  the  increasing  excitement  of  the 
passions,  the  original  grounds  of  controversy  are  lost 
sight  of  and  are  succeeded  by  personal  hostility  and 
malice.  For  the  development  of  these  the  occasion  is 
opportune.    Workingmen  whose  families  are  pinched  by 


Strikes  and  Trusts  393 

poverty  and  tortured  by  want  have  beheld  with  envious 
eyes  their  employer  revelling  in  riches  and  luxury.  They 
assert  that  while  he  has  been  getting  richer,  they  have 
been  getting  poorer.  Yet  they  have  worked  like  slaves, 
and  individually  he  has  neither  toiled  nor  spun.  That 
with  these  conditions  any  provocation,  real  or  fancied, 
should  breed  bitter  feelings  is  but  natural;  and  these, 
as  the  contest  deepens,  become  more  intense  until  they 
reach  the  point  of  implacability,  and  the  revolted  work- 
ingmen  are  ready  to  say  with  George,  afterwards  Duke 
of  Clarence,  in  "King  Henry  VI.": 

"But  when  we  saw  our  sunshine  make  thy  spring, 
And  that  thy  summer  bred  us  no  increase, 
We  set  the  axe  to  thy  usurping  root; 
And  though  the  edge  has  sometimes  hit  ourselves, 
Yet,  know  thou,  since  we  have  begun  to  strike, 
We'll  never  leave  till  we  have  hewn  thee  down." 

Thus  the  controversy,  begun  with  the  intention  to 
extort  an  increase  of  wages,  or  a  shortening  of  the  hours 
of  labor,  results  in  riots,  destruction  of  property  and 
bloodshed. 

The  old  laws  were  simply  punitory,  and  therefore 
inefficient.  In  Magdeburg,  in  1301,  ten  representative 
strikers  were  burned  alive  in  the  market  place.  At 
Cologne,  on  the  twenty-first  day  of  November,  1371, 
thirty-two  striking  weavers  were  executed ;  the  next  day 
many  others  were  murdered;  finally,  eighteen  hundred 
with  their  wives  and  children,  were  banished,  and  their 
guild  hall  was  demolished.  After  the  great  strike  of 
weavers  at  Nottingham,  in  the  early  part  of  this  century, 
many  were  condemned  to  death  and  to  transportation. 
The  efficacy  of  punishment  depends  more  on  its  certainty 
than  on  its  severity.  When  multitudes  of  men  combine 
to  violate  the  law  it  is  impossible  to  punish  them  all, 
and  when  punishment  is  meted  out  to  a  few  only,  the 


394  Addresses 

greater  number  of  persons  equally  guilty  who  go  unpun- 
ished are  rather  exasperated  than  subdued,  and  by  the 
arbitrary  selection  of  victims  the  moral  example  con- 
templated by  the  law  is  lost.  But  until  recently  noth- 
ing like  preventive  process  seems  to  have  ever  been 
thought  of. 

Without  any  disparagement  of  the  courts  of  England 
and  America,  which  have  built  up  the  most  admirable 
system  of  jurisprudence  ever  fashioned  by  man,  it  may 
be  suggested  that  at  times  they  may  have  looked  at  the 
law  too  much  through  the  pinhole  of  precedent,  may  have 
been  sometimes  too  conservative,  and  may  have  failed 
to  keep  pace  with  the  advancing  strides  of  civilization. 
This  reflection  occurred  to  me  with  unusual  force  in 
reading  the  very  able  and  instructive  opinions  delivered 
by  Mr.  Circuit  Justice  Taft  and  Mr.  District  Justice 
Ricks  very  recently  in  the  case  of  Toledo  E.  Co.  vs.  Penn- 
sylvania Co.,  54  Fed.  Rep.,  730.  This  was  a  case  of  a 
boycott  of  a  particular  railway  by  the  engineers  of  other 
railways  because  the  railway  thus  proceeded  against  had 
employed  engineers  who  were  not  members  of  the  Broth- 
erhood of  Locomotive  Engineers.  The  boycott  was  car- 
ried out  by  an  order  issued  by  the  chief  executive  officer 
of  the  Brotherhood  requiring  all  employes  of  several 
other  railways  to  refuse  to  handle  any  cars  or  freight 
that  had  been  hauled  over  the  offending  railway. 

Application  was  made  for  a  mandatory  injunction  to 
compel  the  chief  executive  to  rescind  this  order,  and  also 
to  compel  the  railways  not  included  in  the  boycott,  and 
their  employes,  to  receive  and  handle  the  cars  and  freight 
coming  from  the  boycotted  railway.  It  was  objected 
that  a  mandatory  injunction  could  not  issue  until  final 
decree.  That,  of  course,  would  make  the  remedy  use- 
less. The  objection  was  overruled.  Certain  employes, 
having  evaded  compliance  with  the  injunction,  were 
arrested  for  contempt.     It  was  objected  that  they  had 


Strikes  and  Trusts  395 

not  been  made  parties  to  the  suit ;  but  the  court  held  that 
as  they  were  employes  of  the  defendants,  and  were  aware 
of  the  injunction,  they  could  be  proceeded  against  with- 
out making  them  parties.  It  was  further  objected  that 
there  was  no  precedent  for  these  proceedings.  But  the 
court  said: 

"It  is  said  the  orders  issued  in  this  case  are  without 
precedent.  Every  just  order  or  rule  known  to  equity 
courts  was  born  of  some  emergency,  to  meet  some  new 
conditions,  and  was,  therefore,  in  its  time,  without  a 
precedent.  If  based  on  sound  principles,  and  beneficent 
results  follow  their  enforcement,  affording  necessary 
relief  to  the  one  party  without  imposing  illegal  burdens 
on  the  other,  new  remedies  and  unprecedented  orders 
are  not  unwelcome  aids  to  the  chancellor  to  meet  the 
constantly  varying  demands  for  equitable  relief.  Mr. 
Justice  Brewer,  sitting  in  the  Circuit  Court  for 
Nebraska,  said: 

1 '  '  I  believe  most  thoroughly  that  the  powers  of  a  court 
of  equity  are  as  vast,  and  its  processes  and  procedure 
as  elastic,  as  all  the  changing  emergencies  of  increasingly 
complex  business  relations  and  the  protection  of  rights 
can  demand.' 

"Mr.  Justice  Blatchford,  speaking  for  the  Supreme 
Court  in  Joy  vs.  St.  Louis,  138  U.  S.,  1 ;  11  Sup.  Ct.  Rep., 
243,  said: 

"  <#     •     •     jj-  }s  one  0f  tjje  most  useful  functions  of  a 

court  of  equity  that  its  methods  of  procedure  are  capable 
of  being  made  such  as  to  accommodate  themselves  to  the 
development  of  the  interests  of  the  public  in  the  prog- 
ress of  trade  and  traffic  by  new  methods  of  intercourse 
and  transportation.' 

"The  spirit  of  these  decisions  has  controlled  this  court 
in  its  action  in  this  case. ' ' 
As  to  the  merits  of  the  case,  the  court  said : 
"But  this  court  recognizes  to  its  fullest  extent  the 


396  Addresses 

large  measure  of  personal  liberty  permitted  to  employes, 
and,  while  it  feels  they  have  violated  their  contract  of 
service,  it  disclaims  any  power  to  compel  them  to  con- 
tinue that  service  against  their  will,  under  the  facts  of 
this  case.  The  insuperable  difficulties  attending  an 
attempt  to  enforce  the  performance  of  continuous  per- 
sonal service  have  heretofore  deterred  courts  of  equity 
from  undertaking  to  grant  relief  in  such  cases.  But  in 
the  varying  circumstances  under  which  the  employer's 
rights  to  such  relief  are  presented  it  often  happens  that 
adequate  protection  is  only  possible  by  restraining  the 
employes  from  refraining  to  do  acts  which  they  have 
combined  and  conspired  to  do,  and  the  inhibiting  of 
which  secures  the  relief  to  which  the  employer  is  clearly 
entitled.  By  such  modes  of  procedure  courts  of  equity 
are  often  able  to  afford  protection  where  they  could  not 

do  it  by  attempting  to  enforce  specific  performance. 

********* 

"If  the  employe  quits  in  good  faith,  unconditionally 
and  absolutely,  under  such  circumstances  as  are  now 
under  consideration,  he  is  exercising  a  personal  right 
which  cannot  be  denied  him.  But  so  long  as  he  con- 
tinues in  the  service,  so  long  as  he  undertakes  to  per- 
form the  duties  of  engineer  or  fireman  or  conductor,  so 
long  the  power  of  the  court  to  compel  him  to  discharge 
all  the  duties  of  his  position  is  unquestionable,  and  will 
be  exercised.  As  hereinbefore  intimated,  the  duties  of 
an  employe  of  a  public  corporation  are  such  that  he  can- 
not always  choose  his  own  time  for  quitting  that  service ; 
and  so  long  as  he  undertakes  to  perform  and  continues 
his  employment  the  mandatory  orders  of  the  court  to 
compel  all  lawful  service  can  reach  him  and  be  enforced. 
The  circumstances  when  this  freedom  to  quit  the  service 
continues  and  when  it  terminates  it  is  not  now  neces- 
sary to  determine ;  but  there  certainly  are  times  and  con- 
ditions when  such  right  must  be  denied. 


Strikes  and  Trusts  397 

1 '  The  rule  that  equity  will  not  enjoin  a  crime  has  here 
no  application.  The  authorities  where  the  rule  is  thus 
stated  are  cases  where  the  injury  about  to  be  caused  was 
to  the  public  alone,  and  where  the  only  proper  remedy, 
therefore,  was  by  criminal  proceedings.  When  an  irrep- 
arable and  continuing  unlawful  injury  is  threatened 
to  private  property  and  business  rights,  equity  will  gen- 
erally enjoin  on  behalf  of  the  person  whose  rights  are 
to  be  invaded,  even  though  an  indictment  on  behalf  of 
the  public  will  also  lie." 

Another  highly  important  case  is  that  of  the  United 
States  vs.  Workingmen 's  Amalgamated  Council  of  New 
Orleans,  54  Fed.  Rep.,  994,  in  which,  upon  an  applica- 
tion for  injunction,  Judge  Billings  held  that  a  combina- 
tion of  men  belonging  to  a  trades  union  with  a  view  to 
prevent  by  violence  and  intimidation  the  employment  of 
non-union  men  in  the  transportation  of  goods  between 
the  states  and  between  the  states  and  foreign  nations 
was  a  violation  of  the  Interstate  Commerce  Law. 

I  trust  that  I  may  be  pardoned  for  expressing  the 
opinion,  confessedly  of  no  great  value,  that  these  are 
among  the  most  important  decisions  that  have  been  ren- 
dered for  many  years.  It  opens  a  new  perspective  of 
practical  utility  to  be  attained  through  the  preventive 
process  of  courts  of  equity. 

The  usefulness  of  trades  unions  of  laborers  in  cases 
of  arbitration  is  obvious ;  for  without  some  such  organi- 
zation arbitration  would  be  impossible.  Their  utility 
was  shown  in  the  first  case  just  mentioned  in  the  same 
way;  for  an  injunction  against  the  chief  officer  of  the 
Brotherhood  operated  through  him  at  once  upon  all  of 
its  members,  as  they  held  themselves  subject  to  his  orders. 

But  let  it  not  be  supposed  that  such  unions  are  alto- 
gether beneficial.  Far  from  it.  Their  rules  limiting  the 
number  of  apprentices  cannot  be  justified.  Every  man 
ought  to  be  allowed  freely  to  choose  his  calling  in  life. 


398  Addresses 

The  right  to  labor  is  the  first  of  all  rights,  and  it  ought 
not  to  be  limited  by  artificial  restraints.  Besides,  the 
result  is  to  exclude  from  various  callings  men  who  are 
the  most  qualified  to  excel  in  them.  Moreover,  the 
efforts  of  the  union  men  to  exclude  non-union  men  from 
employment  leads  to  the  grossest  injustice  and  oppres- 
sion. What  the  unions  seek  to  attain  is  a  monopoly  of 
labor. 

Most  of  our  state  constitutions  contain  the  declaration 
that  "perpetuities  and  monopolies  are  contrary  to  the 
genius  of  a  republic,  and  shall  not  be  allowed."  This 
is  but  the  expression  of  the  ascertained  fact  that  compe- 
tition is  the  life  of  trade.  If  you  remove  or  suppress 
that  competition  by  any  artificial  means,  monopoly  at 
once  ensues.  Many  years  ago,  before  the  extension  of 
transportation  by  railways,  the  several  merchants  of  a 
village,  when  weary  of  competition,  would  agree  to  mark 
up  all  their  goods  on  a  certain  day  a  certain  per  cent, 
thus  creating  a  monopoly. 

So  it  was  common  a  few  years  ago  for  competing  rail- 
roads to  pool  their  earnings.  After  that  they  could 
charge  what  they  pleased  without  detriment  to  either, 
and  neither  had  any  particular  inducement  to  furnish 
good  service.  At  present,  the  monopoly  of  the  village 
merchants  can  no  longer  be  imposed;  for  goods  are  now 
advertised  with  prices  annexed  by  large  dealers  in  all 
our  cities,  and  are  sent  on  demand  to  all  parts  of  the 
country  by  mail  and  by  express;  and  the  pooling  of 
earnings  by  railway  companies  is  forbidden  by  the  Inter- 
state Commerce  Act. 

The  plan  adopted  by  merchants  in  small  villages  could 
rarely  or  never  be  successfully  carried  out  in  large  places, 
for  if  a  concurrence  of  all  the  merchants  in  the  agree- 
ment could  first  be  obtained,  some  would  be  found  that 
would  violate  it,  in  which  case  it  would  be  necessarily 
abandoned  by  common  consent. 


Strikes  and  Trusts  399 

I  have  spoken  only  of  the  unions  of  skilled  workmen. 
As  for  the  unskilled,  though,  like  the  farmers,  they 
sometimes  attempt  to  form  and  keep  up  such  unions,  yet 
all  such  efforts  are  fruitless,  because  they  are  too  numer- 
ous and  too  scattered,  and  because  their  necessities  often 
prevent  them  from  withholding  their  products  from  the 
market  until  the  advent  of  better  times.  Like  lawyers, 
doctors  and  professional  classes  generally,  they  are 
debarred  from  increasing  their  wages  by  combination. 

The  local  and  somewhat  primitive  monopolies  men- 
tioned have  been  succeeded  by  others  far  more  por- 
tentous. In  1869,  the  Standard  Oil  Trust,  the  first  of 
the  kind,  was  organized.  It  was  a  combination  among 
the  refiners  of  crude  petroleum  in  Pennsylvania  and 
Ohio.  This  scheme  was  attended  with  such  astonishing 
pecuniary  success  that  it  was  in  the  course  of  a  few  years 
applied  to  almost  every  kind  of  industry.  The  proprie- 
tors of  various  mills  said  to  each  other :  ' '  We  are  now 
spending  large  sums  of  money  in  the  race  for  business, 
in  advertising,  in  sending  out  drummers,  and  so  on.  If 
we  will  only  pool  our  property,  and  put  it  under  one 
control,  we  shall  save  all  this  expense;  we  can  also  dis- 
miss many  agents  and  employes,  as  one  superintendent 
or  cashier  will  do  all  the  work  that  is  now  done  by 
twenty ;  and  we  can  charge  what  we  please  for  our  prod- 
ucts, for  we  shall  then  have  no  competition.  In  short, 
let  us  quit  trying  to  cut  each  other's  throats,  and  let  us 
begin  to  fight  the  public."  This  reasoning  resulted  in  a 
trust,  and  with  the  results  of  trusts  we  are  familiar. 

As  soon  as  the  trust  is  formed  the  price  of  the  goods 
is  marked  up,  and  as  every  increase  in  price  means  a 
decrease  in  consumption,  the  production  of  goods  is  not 
so  great  as  it  was.  Therefore  certain  mills  are  closed, 
or  are  run  on  shorter  time,  and  workmen  are  told  that 
their  services  are  no  longer  needed.  The  profits  derived 
from  this  proceeding  are  phenomenal.     Thus  on  the 


400  Addresses 

establishment  of  the  Standard  Oil  Trust,  though  the  rail- 
ways were  carrying  the  products  of  this  monopoly  nom- 
inally at  the  same  rates  imposed  on  other  refiners,  they 
paid  the  Standard  Oil  Trust  $10,000,000  in  eighteen 
months  in  rebates  that  were  agreed  on.  The  result  was 
that « *  its  competitors  were  ruined,  and  idle  factories,  old 
pipe  lines  no  longer  used,  and  business  wrecks  through- 
out the  country  give  evidence  of  enormous  economic 
waste."1  The  most  marvelous  thing  was  that  by  its 
agreement  with  the  railways  the  trust  not  only  secured 
and  received  a  rebate  on  its  own  shipments,  but  also  on 
all  shipments  of  oil  made  by  other  producers.  A  few 
years  ago  the  Cotton  Seed  Oil  Trust  by  a  single  stroke 
of  the  pen  reduced  the  price  of  cotton  seed  from  $7  to 
$4  a  ton,  thus  realizing  two  million  dollars  per  annum 
on  that  item  alone;  the  loss  being  sustained  by  the 
planters  who  raised  the  seed.2 

It  would  be  of  but  little  use  to  put  down  competition 
unless  it  could  be  kept  down.  To  accomplish  this  result, 
the  trusts  resort  to  measures  analogous  to  those  used  by 
laborers  to  keep  down  the  number  of  apprentices.  If  a 
number  of  men,  say  in  the  south  or  west,  conclude  to 
begin  the  manufacture  of  some  article  of  necessary  con- 
sumption, it  will  not  be  long  before  they  receive  a  letter 
reading  somewhat  as  follows: 

"We  notice  with  regret  that  you  purpose  to  start  a 
factory  in  your  place  for  the  purpose  of  making  the 
commodities  which  we  are  now  producing  in  a  manner 
acceptable  to  dealers.  You  are  no  doubt  aware  of  the 
fact  that  for  many  years  we  have  supplied  your  market 
with  articles  of  that  kind.  This  we  have  done  at  the 
lowest  possible  cost  of  production.    Our  duty  to  our  cus- 


1  Richard  T.  Ely,  Harper's  Magazine,  August,  1886.  Handley 
vs.  Cleveland  R.  R.  Co.,  31  Fed.  Rep.,  689.  Cook  on  "The  Corpora- 
tion Problem,"  37. 

*  "Monopolies  and  the  People,"  by  Charles  Whiting  Baker,  79. 


Strikes  and  Trusts  401 

tomers  as  well  as  to  ourselves  forbids  that  we  shall  sit 
idly  by  and  let  our  trade  be  taken  out  of  our  hands.  We 
therefore  think  it  proper  to  advise  you  that  if  you  per- 
sist in  your  purpose  we  shall  sell  the  articles  that  we 
manufacture  in  your  town  and  country  for  much  less 
than  you  can  make  them  for.  Hoping  that  you  will 
receive  this  communication  in  the  same  friendly  spirit 
by  which  it  is  dictated,  we  remain,  etc." 

This  letter  is  signed  by  some  well  known  manufactur- 
ing firm,  and  means  what  it  says.  On  inquiry  the  pro- 
moters find  that  while  they  can  start  their  factory  with 
a  capital  of  $100,000,  it  will  take  a  million  more  to  fight 
the  battle  with  monopoly ;  therefore  they  usually  desist. 
Occasionally  a  very  rich  man  like  Claus  Spreckles  may 
start  an  opposition  sugar  refinery ;  but  in  that  case  there 
is  no  guaranty  that  if  he  comes  out  safely  from  the  con- 
flict with  an  established  trust,  it  will  not  very  soon  dis- 
appear in  the  capacious  bosom  of  that  trust,  with  a  par- 
ticipation in  the  extra  twenty-five  per  cent  that  the  trust 
levies  on  the  consumer. 

It  has  sometimes  been  said  that  the  effect  of  the  trusts 
is  to  bring  down  prices,  owing  to  the  greater  cheapness 
with  which  goods  can  be  manufactured  on  a  large  scale, 
and  that  the  proof  of  this  lies  in  the  fact  that  refined  oil 
is  now  sold  for  less  than  it  was  before  the  Standard  Oil 
Trust  was  formed.  In  this  statement  there  is  no  truth 
whatever.  It  would  be  strange  if  these  trusts  should 
forego  the  very  objects  for  which  they  were  created.  The 
truth  is  that  the  price  of  oil  has  gone  down  because  the 
Standard  Oil  Trust  was  never  able  to  corner  the  entire 
production,  and  has  therefore  always  been  subject  to  the 
law  of  competition;  and  because  of  the  extraordinary 
development  of  the  oil  industry  in  Russia,  which  has 
reduced  prices  the  world  over. 

But  the  evil  does  not  stop  here.  Lord  Coke  pointed 
out  an  evil  effect  arising  out  of  monopolies  from  the  fact 


402  Addresses 

that  the  public  are  defrauded  by  having  goods  of  an 
inferior  quality  imposed  on  them.1  Those  who  have  the 
absolute  power  to  fix  whatever  price  they  please  on  the 
commodities  that  they  sell  may  freely  indulge  that  privi- 
lege without  reference  to  quality.  The  result  of  our 
monopolies  has  been  that  goods  of  greatly  inferior  qual- 
ity have  usurped  the  market  of  the  country,  and  have 
placed  a  stigma  on  our  products  abroad,  turning  out  in 
some  cases,  as  in  the  lucifer  matches,  which  have  been 
put  on  the  market  for  years  by  the  Match  Trust,  articles 
so  deplorably  bad  that  nothing  like  them  can  be  found 
elsewhere  in  the  whole  world. 

Mr.  Cooley,  whose  opinion  has  always  been  listened 
to  by  the  profession  with  respect,  says: 

"A  few  things  may  be  said  of  trusts  without  danger  of 
mistake.  They  are  things  to  be  feared.  They  antag- 
onize a  leading  and  most  valuable  principle  of  industrial 
life  in  their  attempt  not  to  curb  competition  merely,  but 
to  put  an  end  to  it.  The  course  of  the  leading  trust  of 
the  country  has  been  such  as  to  emphasize  the  fear  of 
them.  *  *  *  When  we  witness  the  utterly  heartless 
manner  in  which  trusts  sometimes  have  closed  manu- 
factories and  turned  men  willing  to  be  industrious  into 
the  streets,  in  order  that  they  may  increase  profits  already 
reasonably  large,  we  cannot  help  asking  ourselves  whether 
the  trust  as  we  see  it  is  not  a  public  enemy,  whether  it 
is  not  teaching  the  laborer  dangerous  lessons,  whether 
it  is  not  helping  to  breed  anarchy."2 

While  the  trusts  are  thus  making  inferior  articles  of 
consumption,  and  selling  them  at  extortionate  rates,  they 
frequently  declare  that  there  is  an  "over-production," 
shut  down  their  mills,  turn  their  workmen  out  of  employ- 
ment, and  wait  until  the  needs  of  the  public  require  the 


1  The  Monopolies,  6  Coke,  159. 

1  Cited   in   Cook   on   "The   Corporation   Problem,'*  234.     Mr. 
Cook's  language  is  even  more  severe  and  emphatic.     Id.  222. 


Strikes  and  Trusts  403 

payment  of  the  coveted  prices;  the  phrase  " over-produc- 
tion' '  having  with  them  a  technical  meaning,  which, 
being  interpreted,  signifies  that  the  trusts  are  not  mak- 
ing as  much  money  as  they  want  to  make. 

To  meet  these  evils,  the  "Anti-Trust  Act"  of  Congress 
was  passed  and  approved  on  the  second  day  of  July, 
1890.  It  smites  with  illegality  all  the  combinations  made 
in  restraint  of  trade,  all  monopolies,  and  all  contracts 
leading  up  to  them,  and  imposes  heavy  penalties  on  the 
individuals  that  become  parties  thereto.  It  provides  that 
suits  may  be  brought  in  the  Federal  Courts  to  restrain 
violations  of  the  act,  for  forfeiture  of  property  used 
under  any  contract,  or  by  any  combination,  or  pursuant 
to  any  conspiracy  mentioned  in  the  act,  and  for  private 
remedies  for  persons  injured  by  the  forbidden  acts  per- 
petrated by  the  classes  against  whom  it  is  directed. 

The  act  has  been  criticised  because  it  contains  no  defi- 
nitions ;  but  the  common  law  terms  used  in  it  seem  to  be 
sufficient.  The  language  is  searching,  and  the  provisions 
are  drastic.  If  properly  supplemented  by  state  legisla- 
tion and  enforced  by  the  courts  in  the  spirit  in  which 
it  was  enacted,  the  various  combinations  against  which 
it  is  levelled  may  in  all  probability  as  well  make  up 
their  minds  to  retire  with  their  ill-gotten  gains,  to  seek 
less  devious  methods.1  No  doubt  those  who  have  once 
tasted  the  sweets  of  monopoly  will  not  willingly  repair 


1When  the  act  was  passed  the  following  trusts  were  known 
to  exist:  1.  The  Steel  Rail  Trust.  2.  The  Nail  Trust.  3.  The 
Iron  Nut  and  Washer  Trust.  4.  The  Barbed  Wire  Trust.  5.  The 
Copper  Trust.  6.  The  Lead  Trust.  7.  The  Slate  Pencil  Trust.  8. 
The  Nickel  Trust.  9.  The  Zinc  Trust.  10.  The  Sugar  Trust.  11. 
The  Oilcloth  Trust.  12.  The  Jute  Bag  Trust.  13.  The  Cordage 
Trust.  14.  The  Paper  Envelope  Trust.  15.  The  Gutta  Percha 
Trust.  16.  The  Castor  Oil  Trust.  17.  The  Linseed  Oil  Trust. 
18.  The  Cottonseed  Oil  Trust.  19.  The  Borax  Trust.  20.  The  Ul- 
tramarine Trust.  21.  The  Whiskey  Trust.  22.  The  Standard  Oil 
Trust.  23.  The  Match  Trust.  24.  The  Dressed  Beef  Trust.  25. 
The  Starch  Trust.  26.  The  Distillers'  and  Cattle  Feeders'  Trust. 
27.  The  Straw  Board  Trust.  28.  The  School  Book  Trust.  29. 
The  Gas  Trust.    30.  The  Cigarette  Trust. 


404  Addresses 

to  less  profitable  pursuits.  We  know  something  of  that 
secrecy,  worthy  of  the  Council  of  Ten  in  Venice,  with 
which  the  business  of  our  great  corporations  is  con- 
ducted; but  in  this  instance  if  secret  measures  are 
adopted,  they  will  be  attended  with  unusual  perils,  and 
the  courts  will  possess  very  ample  powers  of  investigation 
in  proceedings  both  civil  and  criminal.1 

It  too  often  happens  in  our  country  that  important 
social  and  economic  questions  fall  into  the  domain  of 
party  politics,  after  which  reason  and  common  sense  are 
often  banished,  and  their  place  is  usurped  by  idle  decla- 
mation. Fortunately,  in  the  present  instance,  there  is  a 
feeling  common  to  men  of  all  political  parties  that  the 
evils  that  I  have  mentioned  Ought  to  be  suppressed ;  and 
in  view  of  the  past  history  of  our  institutions  we  are 
fully  justified  in  predicting  satisfactory  results  to  be 
attained  at  no  distant  day. 


•In  Stanton  vs.  Allen,  5  Denio,  434,  suit  was  brought  on  a 
note  given  on  account  of  an  agreement  to  regulate  freight  be- 
tween the  owners  of  boats  on  the  Erie  and  Oswego  Canals  "by  a 
uniform  scale  to  be  fixed  by  a  committee  chosen  by  defendants, 
and  to  divide  the  profits  on  their  business  according  to  the  number 
of  boats  employed  by  each."  The  court  held  that  "the  tendency 
of  such  an  agreement  is  to  increase  prices,  to  prevent  wholesome 
competition,  and  to  diminish  public  resources,  and  that  it  was 
"therefore  against  public  policy,  and  void  by  the  principles  of 
the  common  law."  To  like  effect  see  People  vs.  Fisher,  14  Wend. 
9;  Comm.  vs.  Carlyle,  Brightly  36;  Hooker  vs.  Vandewater,  4 
Denio,  349;  Craft  vs.  McConoughy,  79  111.,  346;  Arnot  vs.  Pit- 
son,  &c,  Coal  Co.,  68  N.  Y.,  558;  Morris  Run  Coal  Co.  vs.  Barclay 
Coal  Co.,  68  Pa.  St.,  173;  India  Bagging  Asso.  vs.  Kock,  14  La. 
Ann.,  168;  Texas  Ry.  Co.  vs.  Southern  Pac.  Ry.  Co.,  41  id.  970; 
Anderson  vs.  Jett,  (Ky.)  12  S.  W.  R.,  670;  Santa  Clara  Mill  Co. 
vs.  Hayes,  76  Cal.,  387;  Central  Salt  Co.  vs.  Guthrie,  35  Ohio 
St.,  666;  De  Witt  Wire  Cloth  Co.  vs.  New  Jersey  Wire  Cloth  Co., 
14  N.  Y.,  Supp.  277;  Moore  vs.  Bennett,  29  N.  E.  R.,  888;  U.  S. 
vs.  Jelico  Mountain  Coal  Co.,  46  Fed.  R.,  432;  Gibbs  vs.  Consoli- 
dated Gas  Co.,  130  U.  S.,  396;  Currier  vs.  Concord  Ry.  Co.,  48 
N.  H,  321;  Alger  vs.  Thacher,  19  Pick.,  54;  Denver  Ry.  Co.  vs. 
Atcheson  Ry.  Co.,  15  Fed.  R.,  650;  Morrill  vs.  Boston  Ry.  Co.,  55 
N.  H,  531;  Richardson  vs.  Buhl,  77  Mich.,  632;  W.  U.  Tel.  Co.  vs. 
American  Tel.  Co.,  65  Ga.,  160;  Stewart  vs.  Erie  Trans.  Co.,  17 
Minn.,  372. 


TRANSLATIONS 


TRANSLATIONS 

Poetical  Translation  of  the  Introduction  to  Goethe's 
Faust 

ZUEIGNUNG 

Once  more,  0  phantoms,  ye  are  hovering  near, 
Weird  visions  which  my  earlier  glance  revealed. 

Shall  I  for  once  attempt  to  clasp  you  here, 
Or  let  my  heart  to  that  illusion  yield  ? 

Ye  gather  round!    Ah  well,  your  realm  be  here, 
As  ye  come  forth  from  out  the  misty  field 

Of  formless  vapor,  while  I  breathe  again 

The  magic  breath  that  folds  around  your  train. 

Ye  bring  again  the  forms  of  other  days; 

And  many  lovely  shadows  softly  rise; 
Like  old  tradition's  nearly  dying  lays 

Come  friendships  and  first  love  that  never  dies, 
Renew  the  pain  of  labyrinthine  ways, 

The  wild  regret  where  life's  sad  error  lies, 
And  name  the  wise,  the  beautiful,  the  good, 
Who  people  now  death 's  lonely  solitude. 

Alas!   No  longer  this  belated  song 

Is  heard  by  those  for  whom  at  first  I  strung 
My  lute;  and  scattered  is  that  friendly  throng; 

The  echoes  dead  of  all  the  lays  I  sung: 
The  world's  applause  may  follow  loud  and  long, 

But  o'er  my  soul  a  spell  of  pain  is  flung, 
Amid  the  alien  crowd,  and  turns  my  heart 
To  those  who  died  or  wander  far  apart. 

407 


408  Addresses 

The  olden  yearning  long  unfelt  I  feel, 
The  longing  for  the  far-off  spirit  land; 

Upon  the  ear  the  half-formed  tones  will  steal, 
As  when  a  harp  by  idle  winds  is  fanned; 

I  tremble ;  and  the  springing  tears  reveal 

The  weakness  which  the  heart  may  not  withstand ; 

The  things  I  have  are  sunk  in  gloom  and  night, 

And  vanished  forms  revive  before  my  sight. 

THE  BROKEN  VASE 

Translated  from  the  French  of  Sully-Prudhomme 

That  vase  wherein  a  lily  droops 
A  lady's  dainty  fan  hath  broken; 

The  act  unheeded  was,  the  flaw 
Was  unrevealed  by  any  token. 

But  still  the  thin  and  thread  like  fissure 
Preyed  on  the  crystal  day  by  day, 

And  with  its  sure  and  silent  progress 
Made  round  the  vase  its  fatal  way. 

The  falling  drops,  the  fading  bloom, 
Disclose  at  last  the  doom  unspoken, 

And  all  the  world  shall  come  to  know 
They  must  not  touch — the  vase  is  broken. 

And  thus  sometimes  the  hand  we  love 
May  give  the  heart  the  slightest  blow; 

And  then  the  rift  will  widen  out 
Until  the  flower  of  love  lies  low. 

Unnoticed  by  the  world  it  weeps, 

Laments  its  melancholy  lot, 
The  hidden  wound  so  fine  and  deep— 

The  vase  is  broken — touch  it  not! 


Translations  409 

"KENNST  DU  DAS  BILD  AUF  ZARTEM 
GRUNDE?" 

(the  eye) 

Knowest  thou  the  picture  soft  of  hue? 

Itself  the  fountain  of  its  light, 
Each  moment  changing  to  the  view, 

Yet  ever  perfect,   fresh   and  bright, 
'Tis  painted  in  the  smallest  space, 

Within  the  smallest  frame  enclosed; 
But  of  earth's  greatness  not  a  trace 

Without  it  e'er  had  been  disclosed. 

Can'st  thou  to  me  the  crystal  name? 

No  jewel  equals  it  in  worth; 
It  flashes,  but  without  a  flame, 

Drinks  in  the  boundless  sphere  of  earth, 
And  heaven  itself  in  radiance  plays 

Within  its  magic  circle  bright; 
Yet,  though  it  drinks  celestial  rays; 

More  heavenly  far  is  its  own  light. 

— Schiller. 


EINE  LEICHENPHANTASIE 
A  Funeral  Dirge 

BY  FRIEDRICH  VON  SCHILLER 

With  dead  and  pallid  light 

Stands  the  moon  above  the  grove  tonight ; 
The  sighing  spectre  of  the  night  creeps  through  the 
gloom ; 

Planets  hover 

Wild  mists  over, 
Pallid  stars  like  lamps  within  the  tomb; 


410  Addresses 

And  like  spirits  dumb  and  wan  and  hollow, 

With  sable  pomp,  death's  sad  and  dark  array, 

Attended  by  the  nodding  plumes,  a  train  doth  follow, 
Beneath  the  shrouding  mist,  the  coffined  clay. 

And  leaning  on  his  staff,  lo  one  who  passes  by 

With   gloomy  and   despairing   gaze, 
Whose  bitter  anguish  speaks  but  in  a  broken  cry, 

Sore  vexed,   whom  iron   fate  betrays, 
Whose  footsteps  falter  where  the  waving  plumes  are 

nigh. 
Was  it  "Father"  sounded  from  the  clammy  lips? 

Fearful  shudders  answer  to  that  name; 
All  his  senses  darken  in  a  wild  eclipse, 

Silver  hair  is  streaming  o'er  that  stricken  frame. 
Torn  again  are  all  his  wounds  of  flame, 

Pierced  his  soul  with  many  a  cruel  dart; 
"Father,"  from  the  frozen  lips  there  came, 

"Son,"  responded  still  the  father's  heart; 
Ice-cold,  ice-cold  lieth  he  within  this  hearse, 

And  thy  vision,  dearer  than  all  price, 
Sunlit,  sweet  and  golden,  turns  into  a  curse, 

This  thy  pleasure  and  thy  Paradise. 

Mild  as  surrounded  by  breathings  of  Heaven, 

Pure  as  escaped  from  Aurora's  embrace, 
Roseate  perfumes  as  rained  from  the  odorous  even, 

Circled  with  these  sped  his  life  like  a  summer  day 's 
chase, 
Through  the  fresh  gardens  of  flowers  where  Flora  was 
smiling, 

Fountains  reflecting  in  silver  the  glow  of  his  face, 
Seeming  to  laugh  and  rejoice  at  the  happy  beguiling, 

Laughing  at  kisses  to  maidens  pursued  in  the  race. 

Eager  he  sprang  to  the  forum  where  manhood  was  vieing, 
Like  a  young  roe  on  the  mountain's  stern  height; 


Translations  411 

Heaven  he  flew  through  with  courage  elate  and  undying, 

High  as  an  eagle  in  loftiest  flight. 
Proud  as  a  courser  whose  eyes  gleam  in  splendour, 

Seeing  the  battle  advancing  with  swiftness  of  wings, 
Scorning  to  rein  or  to  rider  to  yield  or  surrender, 

Wandered  he  onward  regardless  of  slaves  or  of 
Kings. 
Joyous  as  springtime,  no  shade  on  the  dial, 

Flew  life  away  as  entranced  as  Hesper's  soft  glance; 
In  the  gay  cup  he  forgot  every  care,  every  trial, 

Dashed  away  pain  in  the  whirl  of  the  dance. 
Worlds  seemed  to  sleep  in  his  promise  of  manhood, 
When  the  young  bud  to  fullness  shall  ripen. 

Not  so,  father !  Hark !  The  churchyard  door  is  creaking ; 

Brazen  hinges  rattle  where  the  dead  abide, 
How  it  harrows!    And  your  father's  heart  is  breaking; 

Yet  repress  not  now  thy  tears'  unstaying  tide. 
Go,  thou  blessed,  follow  in  the  path  of  light; 

Press  thou  onward  where  a  brighter  morning  glows, 
Quench  thy  noble  thirst  for  pleasure  and  delight, 

0  thou  pain-delivered,  in  Valhalla's  long  repose. 

Heavenly  thought  that  tells  of  other  meeting, 

Other  meeting  there  by  Eden's  dawn! 
Hark,  the  coffin  sinks  with  hollow  greeting, 

Sighs  the  quivering  cord  as  upward  drawn! 
Here  we  stand  like  drunkards  reeling, 

Lips  are  silent,  eye  to  eye  is  calling — 
Hold! — the  touch  of  grief  our  hearts  is  steeling — 

Tears  are  now  more  warmly  falling. 

With  dead  and  pallid  light, 
Stands  the  moon  above  the  grove  to-night; 
The  sighing  spectre  of  the  night  creeps  through  the 
gloom ; 


412  Addresses 

Planets  hover 

Wild  mist  over, 
Pallid  stars  like  lamps  within  the  tomb. 
Slowly  grows  the  grave  into  a  mound; 

0  for  earthly  treasure  yet  one  glance !  In  vain ! 
Everlasting  is  death's  final  bound — 
Smoothly  grows  the  heap  of  earth  into  a  mound; 

And  the  grave  gives  never  back  again. 


ABSCHIED 
From  the  German 

So  fare  thee  well  thou  silent  house ; 

With  saddened  heart  I  bid  adieu, 
Not  knowing  where  my  way  shall  lie, 

Still  hoping  peace  may  dwell  with  you. 

So  fare  ye  well,  my  faithful  friends, 
I  take  my  leave  with  troubled  mind; 

Though  fortune  smile  on  other  lands, 
I'll  think  of  those  I  left  behind. 

So  fare  thee  well,  oh  lady  mine; 

My  path  from  thine  afar  off  lies ; 
Give  me  once  more  thy  gentle  hand, 

Nor  doubt  the  love  that  never  dies. 

Sleep  sweetly  through  the  dewy  night 
Until  a  better  morning  break; 

For  me  no  rising  dawn  shall  bring 
The  morn  thine  eyes  alone  can  make. 

And  when  in  other  days  I  come, 
If  then  I  find  no  change  in  thee, 

I  shall  be  rich  though  Fortune  frown, 
For  thou  art  all  the  world  to  me. 


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